Karnataka High Court
Lakshmamma vs Roopesh B on 30 November, 2015
Author: B.S.Patil
Bench: B.S.Patil
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF NOVEMBER, 2015
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
M.F.A.No. 7776/2015
BETWEEN
1. LAKSHMAMMA
AGED ABOUT 64 YEARS
W/O LATE MARAPPA
RESIDING AT NO 143 PATTANAGERE RAJARAJESHWARI
NAGAR BENGALURU - 560098
2. M SARASWATHI
AGED ABOUT 36 YEARS
D/O LATE MARAPPA
RESIDING AT NO 143 PATTANAGERE RAJARAJESHWARI
NAGAR BENGALURU - 560098
... APPELLANTS
(BY SRI MANIAN K B S, ADV.)
AND
1. ROOPESH B
S/O BASAVARAJU NO A/62ND MAIN 3RD CROSS
ANUBHAVANAGAR NAGARABHAVI MAIN ROAD BENGALURU
- 560072
2. P B VIJAYSHANKAR
S/O LATE BASAPPA
RESIDING AT PATTANAGERE VILLAGE RAJARAJESHWARI
NAGAR POST BENGALURU - 560098
3. REMCO (BHEL) HOUSE
BUILDING CO-OPERATIVE SOCIETY LTD A SOCIETY
REGISTERED UNDER THE KARNATAKA CO-OPERATIVE
SOCIETIES ACT REGD NO B/ARBI/RI/WHCS1640/69-70) NO
364 5TH MAIN RPC (REMCO) LAYOUT VIJAYNAGAR 2ND
2
STAGE BENGALURU - 560040
REPRESENTED BY ITS PRESIDENT SRI VIJAYKUMAR
... RESPONDENTS
(BY SRI MOHAN KUMAR K V, ADV. FOR C/R1)
THIS MFA IS FILED U/O 43, RULE 1(r) OF CPC, AGAINST
THE ORDER DATED:3.10.2015 PASSED ON IA NO.1 IN
OS.NO.7737/2015 ON THE FILE OF THE 58TH ADDITIONAL CITY
CIVIL & SESSIONS JUDGE(CCH-59), BENGALURU CITY,
DISMISSING IA NO.1 FILE U/O 39, RULE 1 & 2, R/W SEC 151 OF
CPC.
THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT ON
05.11.2015, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Plaintiffs in O.S.No.7737/2015 have filed this miscellaneous first appeal challenging the order dated 03.10.2015 passed by the learned Additional City Civil and Sessions Judge, Bangalore, dismissing the application filed by them under Order 39 Rules 1 and 2 CPC.
2. Plaintiffs had sought for an order of temporary injunction to restrain defendants 1 and 2 from interfering with their peaceful possession and enjoyment of the suit schedule property which is a residential site bearing No.159 situated in Pattanagere Village, Kengeri Hobli, Bangalore South Taluk, measuring East to West 30 feet and North to South 40½ feet. 3 Suit has been filed seeking a decree of permanent injunction to restrain defendants 1 and 2 from interfering with the plaintiffs peaceful possession and enjoyment of the property.
3. According to the plaintiffs employees of BHEL had formed a house building co-operative society known as REMCO (BHEL) House Building Co-operative Society Limited, registered under the Co-operative Societies Act with the object of forming a layout to allot sites to the employees. The Government acquired certain lands of Pattanagere Village in Kengeri Hobli, for the benefit of the said society. 2nd defendant developed the layout. Marappa under whom plaintiffs claim was an employee
- member of the society and was allotted site No.159 in the layout as per the allotment letter dated 26.04.1992. He was put in possession of the suit property on 01.04.1993. The society subsequently executed a registered sale deed dated 26.11.1992 in favour of the plaintiffs.
4. Plaintiffs allege that they were shocked to know on 31.08.2015 that some miscreants at the instance of defendants 1 and 2 had trespassed into the schedule property and were drilling bore well for the purpose of putting up construction. 4
5. It is also urged that acquisition of the land was challenged by some of the land owners and the same had been set aside. But, as the layout had been completely formed and many allottees had already constructed their houses, defendant No.3 had entered into private negotiation and by paying additional consideration to the owners a ratification deed was executed whereby the land owners relinquished their rights over their lands in favour of defendant No. 3 and its members including the predecessor of plaintiffs; suppressing the said ratification deed, the land owners were trying to usurp vacant sites belonging to the allottees; the khata issued by the BBMP in favour of allottees was illegally sought to be cancelled and the same was challenged in the High Court and the High Court set aside the cancellation by allowing the writ petition. Thus, plaintiffs claimed that they were in possession. Temporary injunction was sought by reiterating the plaint averments.
6. Suit and the application were resisted by defendants 1 and 2. They contended that acquisition of the land was set aside by the High Court way back in the year 1991 and the same was confirmed by the Supreme Court. Therefore, question of 3rd defendant allotting site No.159 vide letter dated 5 26.04.1992 and the plaintiffs being put in possession on 01.04.1993 did not arise at all; for the same reason, the so called registered sale deed dated 26.11.1992 by the defendant - society had no effect on the rights of the owners of the land. The allegation of illegal trespass etc. was denied.
7. They urged that the land bearing Sy. No.25 (New No.25/4) situated at Pattanagere Village measuring 16 acres 7 guntas belonged to one Eraiah who was the ancestor of 2nd defendant. He had four sons including Siddaiah @ Siddappa. Siddananjappa and Basappa are the sons of said Siddappa. 2nd defendant is the son of Basappa. After the death of Eraiah, there was partition in their family whereunder 8 acres 14 guntas of land in Sy. No.25 had fallen to the share of Siddaiah @ Siddappa, grand father of the 2nd defendant and the remaining land in Sy. No.25 including other lands had fallen to the share of other three sons of Eraiah. An extent of 3 acres 30 guntas of land in this survey number was acquired by the Government for the benefit of 3rd defendant - Society.
8. As the acquisition was challenged by the farmers before the High court, the acquisition proceeding came to be quashed. The matter was taken up before the Supreme Court in SLP 6 Nos.12535-37/91 by the 3rd defendant - Society. The Supreme Court dismissed the SLP. While quashing the notifications, the Supreme Court directed that the possession of the land shall be restored to the respective land owners irrespective of the fact whether they had challenged the acquisition of their land or not; on restoration of the possession, the land owners were directed to refund the amount received by them as compensation; the parties and the State Government and other concerned Authorities were directed to implement this direction.
9. Thereafter, the Special Land Acquisition Officer vide his letter dated 20.04.1997 delivered possession of the land bearing Sy. No.25 measuring 3 acres 30 guntas in favour of 2nd defendant and his family members with a direction to repay the amount. Accordingly, the amount was repaid on 25.02.2008. In this regard, copy of the letter dated 20.04.1997 and copy of the official memorandum dated 25.02.2008 are produced by the defendants. In fact, defendant No.3 - Society has written a letter to the Principal Secretary, Revenue Department on 09.10.2002 stating that as per the direction of the Apex Court, the 3rd defendant - Society has received the amount from the 7 land owners and delivered possession of the land in favour of the original land owners. Copy of this letter is also enclosed as document No.4 along with the objections filed by defendant No.1. Thereafter, the Tahsildar entered the name of 2nd defendant's father and his uncle in the revenue documents. After the death of Siddananjappa and Basappa, names of their legal heirs were mutated in the RTC as per documents 5 and 6 and that subsequently, the land was re-phoded and assigned Sub-number 25/4 and in a registered partition dated 14.08.2009, the land fell to the share of 2nd defendant. Thus, the 2nd defendant became the absolute owner. Copy of the registered partition deed was also produced.
10. The land was got converted on 22.03.2010 as per the order passed by the Deputy Commissioner vide document No.9. A document is also produced to show that 2nd defendant has paid a sum of Rs.48,98,480/- to the BBMP towards the betterment charges in respect of this land whereupon the BBMP effected khata in the name of 2nd defendant. 2nd defendant, after converting the land by paying the betterment charges formed layout of sites and some of the sites were sold to different persons.
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11. 1st defendant purchased site No.38 carved out of Sy. No.25/4 under a sale deed dated 02.09.2011. He claims to be in possession and enjoyment of the same. He has produced the sale deed and copy of the layout plan. He claims that his name has been entered in the khata and he has paid up to date tax. Khata certificate and tax paid receipts are produced. He has also produced copy of the sanction plan issued by the competent authority for putting up residential house on the site in question.
12. The defendant No.1 also claims that after obtaining approved plan he has constructed a shed in the site and has obtained electricity connection from the BESCOM. It is also alleged that some of the allottees had filed suit against the original owner and the 3rd defendant - Society but the said suit after trial was dismissed in the light of the judgments rendered by this Court confirmed by the Apex Court quashing the acquisition. Regular First Appeal filed before the High Court was also dismissed. Indeed copies of these judgments in O.S.No.6697/2008 and other connected cases and R.F.A. No. 644/2011 are also relied upon.
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13. The unregistered document styled as ratification-cum- declaration deed sought to be relied upon by the plaintiffs have been denied contending that they have been executed by strangers and that the said ratification deed cannot validate the action that had been set aside. It is urged by defendant No.1 that he has invested huge sum of money and had collected materials for putting up construction in the schedule property borrowing amounts from friends and relatives and that he would be put to irreparable loss, if an interim order was granted and on the other hand, plaintiffs who had no prima facie case for grant of temporary injunction would not be put to any loss, if an order of temporary injunction was not granted.
14. Taking note of these documents and considering the respective cases pleaded by the parties, the Trial Court has come to the conclusion that plaintiffs had failed to make out a prima facie case for grant of an order of temporary injunction and balance of convenience was not in favour of grant of temporary injunction. It has also held that irreparable injury would be caused to the defendant, if temporary injunction was granted.
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15. In the background of these materials, I have heard the learned Senior counsel Sri Jayakumar S. Patil, appearing for the appellants and the learned Senior counsel Sri. Nanjunda Reddy appearing for respondent No.1 and Sri R.S. Ravi, learned counsel appearing for defendant No.2 and Sri D.R. Ravi Shankar, learned counsel appearing for 3rd defendant - Society.
16. Learned Senior counsel for the appellants has placed reliance on the ratification deed dated 02.03.2000 executed by the owners in favour of the Society. Compromise decree passed on 09.11.2006 in O.S.No.17125/2006 filed by the Society against the land owners which is produced along with an application seeking permission to produce additional evidence. Order passed in W.P.No.21920/2010 and connected cases whereunder the challenge made by the Society and the allottees against the proposed action in deleting the names of allottees from the revenue records has been allowed.
17. Sri D.R. Ravi Shankar, learned counsel appearing for the Society submits that first defendant was an advocate for the 2nd defendant - owner and with knowledge of the litigation, he has purchased the property. He further urges that unless the owner files a proper suit seeking declaration, 1st defendant cannot 11 claim any right over the property or be permitted to put up construction.
18. As against these contentions, learned Senior counsel Sri Nanjunda Reddy appearing for defendant No.1 has strongly contended that acquisition of the land for the benefit of 3rd defendant - Society has been quashed. The Apex court has upheld the said order with an additional direction to restore the possession of the land to the owners. Therefore, allotment made by the Society and sale deed executed by it which were based on the said acquisition were all rendered void and ineffective. He refers to the letter dated 09.10.2002 issued by the Society to contend that if there was a ratification deed in the year 2000, the said letter could not have been written by the said society. He has further pointed out that owners have not signed any ratification deed and the same was created at the instance of the Society. Hence, the said ratification deed not being a registered document cannot be looked into. As regards the compromise decree, he points out that the suit was filed on 07.11.2006 and it was compromised on 09.11.2006. The compromise was not signed by the persons who allegedly executed the ratification deed but a paid Secretary of the 12 Society has acted as a power of attorney holder for the so called owners and therefore, the said decree cannot at all affect the rights of 1st defendant. As regards the order in W.P.No.21920/2010 and connected cases, he contends that a limited relief regarding katha of the land was the subject matter in that writ petition and so far as title to the property was concerned, the Court has not said anything. In any event, this order is taken up in writ appeal which is pending. He has placed reliance on the following judgments in support of his contention.
a. AIR 2007 SC 1151 - VYALIKAVAL HOUSE BUILDING CO-OPERATIVE SOCIETY VS. V. CHANDRAPPA AND OTHERS b. (2010) 10 SCC 677 - RITESH TEWARI AND ANOTHER VS. STATE OF UTTAR PRADESH AND OTHERS c. AIR 2008 SC 2033 - ANATHULA SUDHAKAR VS. P. BUCHI REDDY (DEAD) BY L.RS. AND OTHERS d. AIR 2012 SC 205 - SURAJ LAMP AND INDUSTRIES PRIVATE LIMITED VS. STATE OF HARYANA AND ANOTHER. 13
19. Leaned counsel for respondent No.2 - owner of the property has contended that the so called declaration-cum- ratification deed which the plaintiffs have produced was not by the family of Basappa and Siddananjappa, therefore, the said ratification deed cannot have the effect of transferring any right, title or interest in favour of 3rd respondent - Society in respect of land bearing Sy. No.25 (New no.25/4). He has urged that 3rd respondent in collusion with the Secretary of the 3rd respondent
- Society has prepared the compromise petition and the same had been filed with an oblique motive to deprive the 2nd defendant of his valuable right over the property in question. He further contends that schedule mentioned in the compromise petition did not belong to the 2nd defendant. He has placed reliance on the judgment in the case of SMT KRISHNAKUMAR VS. SRI K SURESH KUMAR - ILR 2015 KAR 2325 to contend that any document evidencing delivery of possession of immovable property has to be compulsorily registered and therefore, the ratification deed which is an unregistered document cannot affect the property belonging to defendants 1 and 2.
20. The most important fact which is not in dispute in this proceeding is that though the land in question was acquired for 14 the purpose of 3rd respondent - Society, the acquisition was quashed in the year 1991 vide order passed by this Court which is reported in ILR 1991 KAR 2248. Allotment made in favour of plaintiff of the site in question is admittedly on 26.04.1992 followed by registered sale deed executed by the society in favour of the allottee - plaintiff. The Apex Court has upheld the quashing of the acquisition and has issued a direction to the Society, the State government and other parties concerned to restore possession of the land to the land owners. Indeed, letter dated 09.10.2002 written by the 3rd respondent - Society to the Principal Secretary, Department of Revenue, Government of Karnataka makes it clear that the Society received the amount paid to the land owners. and as per the direction issued by the Apex Court, the lands were handed back to the original land owners. The land owners continue to be the absolute owners of the lands.
21. As rightly urged by the learned Senior counsel, Sri. Nanjunda Reddy, if there was a ratification deed executed on 02.03.2000 by defendant No.2 - owner of the property or his predecessor in title, the letter dated 09.10.2002 could not have been written by the Society to the Principal Secretary. In 15 addition, when the entire acquisition was quashed by the Apex Court directing restoration of the land to the land owners and when as per the letter referred to above, the Society had received the amount paid to the land owners and had put them in possession, question of transferring title back to the society by the land owners by way of the alleged unregistered ratification deed would not arise. The ratification deed, prima facie, cannot be relied upon to establish restoration of title and possession in favour of the Society.
22. Though a compromise decree has been produced along with an application seeking permission to produce additional documents, as defendants 1 and 2 have contended that neither the defendants nor their predecessors in title were parties to the said compromise decree and that it was executed through the paid secretary of the society acting as alleged power of attorney holder of some of the owners and also that the said compromise decree has been obtained within two days from the date of filing of the suit in O.S.No.17125/2006, I am of the view that the said decree cannot be relied upon on at this stage to hold that plaintiffs made out a prima facie case.
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23. Even the order passed by this Court in W.P.No.21920/2010 and connected cases disposed of on 13.02.2013 will not clothe the plaintiffs herein with any right in the wake of the judgment of the Supreme Court. The effect of the said judgment is only with regard to the action of the authorities in revoking the katha while other questions regarding right, title and interest over the property which were larger questions touching upon the validity or otherwise of the ratification deed etc. were left open to be agitated before the Civil Court.
24. In the present case, the Court is concerned with actual possession of the suit property. In the absence of prima facie proof of such possession by the plaintiffs and in the absence of any prima facie case made out by the plaintiffs, the Trial Court has rightly held that there was no material placed by the plaintiffs to show that as on the date of filing of the suit, they had title or possession over the suit property. Whereas, the documents produced by the 1st defendant disclose that the land was got converted and thereafter under a registered sale deed dated 02.09.2011 he purchased the same from the 2nd defendant. The khatha certificate, tax paid receipts, layout plan 17 and the photographs produced by him probablise his assertion that he was in possession of the property.
25. I do not find any illegality in the matter of consideration of the pleadings, the various documents produced by the parties and in the conclusion reached by the Court below holding that no prima facie case had been made out by the plaintiffs. The Court below has also observed that 1st defendant cannot claim any equity with regard to the construction made by him in the site. It has rightly taken note of the investment made by the 1st defendant over the property and has observed that if any injunction was granted, he would be put to serious hardship.
26. Hence, as I do not find any illegality in the order passed, the matter does not warrant interference by this Court in exercise of the appellate powers. The appeal is, therefore, dismissed.
Sd/-
JUDGE VP