Karnataka High Court
Sri. S. C. Gangadharaiah vs Remco (Bhel) on 17 January, 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JANUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
MISCELLANEOUS FIRST APPEAL NO.8988 OF 2017(CPC)
BETWEEN
Sri. S.C.Gangadharaiah,
S/o. Sri. S.S.Chikkarevanna,
Aged about 38 years,
R/at No.408, 9th Cross,
6th Block, BDA Extension
Nagarabhavi,
Bengaluru-560072.
...Appellant
(By Sri. R.B.Sadasivappa, Advocate)
AND
1. REMCO (BHEL)
House Building Co-Operative
Society Limited
Rep. by its President
Sri. Vijaykumar
No.364, 5th Main Road,
RPC Layout, Vijayanagara,
2nd Stage, Bengaluru-560040.
2. Sri. N.Ramesh,
S/o. Late Sri. Ningegowda,
Aged about 49 years,
R/at NO.64/2, 4th Cross,
Gurumurthappa Garden,
Sarakki Main Road,
Bengaluru-560078.
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3. Sri. C.L.Manjunatha,
S/o. Sri. C.N.Lingappa,
Aged about 45 years,
R/at No.359/A, 1st Floor,
10th Main, Hanumanthanagara
Bengaluru-560019.
...Respondents
(By Sri. Shanmukhappa, Advocate for R1)
This MFA is filed under Order 43 Rule 1(r) of CPC,
against the order dated 20.11.2017 passed on IA No.1 in
O.S.No.6794/2017 on the file of the 2nd Additional City Civil
& Sessions Judge, Bengaluru, partly allowing IA No.1 filed
under Order 39 Rule 1 & 2 of CPC.
This MFA having been heard and reserved on
15.12.2017, coming on for pronouncement this day, the
Court pronounced the following :
JUDGMENT
The first defendant in O.S.6794/2017 on the file of the II Addl. City Civil and Sessions Judge, Bengaluru, has preferred this appeal challenging the order dated 20.11.2017 passed on I.A.No.I filed under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure ('CPC' for short) in the said suit. 3
2. The events that led to preferring this appeal are briefly stated as below by referring to the parties with respect to their positions in the court below.
The plaintiff is a House Building Co-operative Society. The suit that the plaintiff has filed is for permanent injunction restraining the defendants from interfering with its peaceful possession and enjoyment of property which is a portion of land in erstwhile Sy. No. 23 of Pattanagere Village, Kengeri Hobli, Bengaluru South Taluk, measuring East to West 232', North to South 38' feet on the western side and 50' on the eastern side, totally measuring 13,426 sq. ft. which is now situated in BHEL Layout within the jurisdiction of BBMP (referred to as 'suit property'). According to the plaintiff, one Patel Nanjundappa, who was the owner of 2 acres 18 guntas of land in Sy. No. 23 of Pattanagere Village executed an agreement of sale in favour of the plaintiff in the year 1984 and received the entire sale consideration under the agreement itself. The plaintiff entered into this transaction with Nanjundappa for the formation of a residential layout for the benefit of its members. The 4 Government also initiated proceedings for acquiring the land in Sy. No. 23 and other neighbouring lands for the benefit of society. The plaintiff formed a layout with the approval of Bengaluru Development Authority and allotted sites to its members. The suit property is a plot set apart by the plaintiff for the civic amenity purpose. The said land was vacant. But, some of the landlords whose lands have been acquired for the benefit of House Building Co-operative Society like the plaintiff challenged the acquisition proceedings before the High Court of Karnataka by filing writ petition which was allowed. This judgment of this court was challenged in the Supreme Court which also confirmed the judgment of this court (HMT. Vs. M. Venkataswamappa - 1995 (3) SCC 128). But the plaintiff had already allotted the sites to its members and executed the sale deeds in their favour in the year 1992. These allottees were not parties in the writ petition. Then the erstwhile owners tried to interfere with the possession of the plaintiff in the land where the layout had been formed and for this reason a meeting was convened. The erstwhile land owners 5 participated in the said meeting, received further consideration and executed a declaration by way of deed ratifying all the acts done by the society including formation of the layout and distribution of sites to its members. The plaintiff also filed a suit O.S.No.4601/2000 against the erstwhile landlords and, in the said suit the land lords came forward and entered into a compromise accepting that the plaintiff society had formed layout and that the allottees had obtained Khata of the sites allotted to them from Rajrajeshwari Nagar City Municipal Council. In fact the children of Late Patel Nanjundappa were also allotted sites by the society.
3. The grandchildren of Patel Nanjundappa who did not have any kind of right, title or interest filed a suit OS.No.7191/2002 against the plaintiff Society. They sought for an order of temporary injunction. Since the court declined to pass of an order temporary injunction in their favour, they withdrew that suit by filing a memo. But, the grandchildren of erstwhile landlords obtained Khata from City Municipality Council, Rajarajeshwari Nagar by 6 suppressing the facts, and on the strength of the Khata they sold the sites of Defendants 2 and 3. The plaintiff stated that since the erstwhile landlords had lost their interest in the entire land, and that they were also not in possession, the sale deeds that were executed in favour of defendants 2 and 3 were void, but they executed a sale deed in favour of the 1st defendant on 23.03.2017 conveying the suit property to him. Based on this sale deed, the 1st defendant made an attempt to dig the earth for laying foundation in the suit property for knocking of the valuable property of the plaintiff society. Since the plaintiff was not able to resist the illegal act of the 1st defendant, it filed a suit. Along with the plaint, the society also made an application seeking an order of temporary injunction reiterating almost all the averments made in the plaint.
4. The 1st defendant, in its statement of objections filed on I.A.No.1, contended very specifically that Patel Nanjundappa was the absolute owner of land in Sy.No.23 of Pattanagere village. After his death, his four sons partitioned the said land. In that partition a portion of land 7 was allotted to one of the sons of Patel Nanjundappa, viz., Chandranna and in that portion he formed 12 sites. After death of Chandranna his sons and daughters partitioned their father's property through a registration deed dated 14.10.2002. In this partition site Nos. 1 and 2 measuring 3090 sq. ft. was allotted to one Sri. Niranjana Murthy and sites 3 to 10 measuring 8910 sq. ft. was allotted to shares of P.C. Lokesh, P.C. Ramesh, P.C. Govardan and Manjula. They obtained Khata to their name. Subsequently on 24.06.2004, the said children of Chandranna sold the sites 1 to 10 formed in Sy.No.23 measuring 12,000 sq. ft. in favour of defendant No.2 Ramesh by executing two registered sale deeds. Defendant No.2 then sold site No.3 to 10 in favour of defendant No.3 and others. Thereafter defendant No.2 and also defendant No.3 sold site Nos. 1 to 10 in favour of defendant No.1. It is further contended that 1st defendant availed loan of Rs.1,25,87,186/- from M/s. Sundaram BNP Paribas Home Finance limited, Yelahanka for purchasing sites 1 to 4. He got drilled a borewell in the said site and obtained electricity connection for commencing a petrol 8 bunk. He also obtained necessary permission and license from concerned authorities for the purpose of establishing a petrol bunk.
5. The first defendant has contended that after the Supreme Court upheld the judgment of this court in Writ petition with regard to acquisition of 57 acres 11 guntas of land in favour of various Housing Building Co-operative Societies, the acquired lands came to be returned to erstwhile land owners by the Government of Karnataka. The owners also repaid the compensation amount that they had received. The possession of the acquired lands was redelivered to the land owners. Ignoring all these legal proceedings, the plaintiff in collusion with one J.Ravindra Babu created a fraudulent GPA in his favour and filed a suit O.S.No.4601/2000 and obtained a compromise decree without the consent of the land lords. Therefore the plaintiff has no manner of right, title or interest over the possession of the sites bearing No.1 to 10 formed in Sy.No.23 of Pattanagere Village. The plaintiff cannot claim to be in possession of the suit property.
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6. The trial court after hearing the plaintiff and the defendant granted an order of temporary injunction against the 1st defendant as prayed for by the plaintiff. After referring to the number of documents produced by the plaintiff and also the 1st defendant, it has been held by the trial court that there is no dispute with regard to the fact that Patel Nanjundappa was the original owner of the land in Sy.No.23 of Pattanagere village, that he himself had executed an agreement of sale on 26.05.1984 and thereafter a GPA along with his sons on 5.01.1985 and that Niranjana Murthy, son of Chandranna repaid the compensation amount to the LAO in respect of 2 AC 2 guntas of in respect of Sy.No.23 of Pattanagere village and the said land was returned to the possession of the owners; but the Xerox copy of the declaration of rectification deed dated 23.02.2000 executed by Rajanna, Chandranna, Gangadharaiah, Basavarajaiah, Puttashankarappa, Harish Kumar discloses that after the Supreme Court judgment in S.L.P.No.12535-37/1991 and SLP.No.8011-19-95, they all handed over the possession to the very same land to the plaintiff. This being the position 10 there is no document to show that Patel Nanjundappa and his grandsons once again took back possession from the plaintiff Society so that the defendant No.1 can claim to be in possession of the suit property. The trial court also referred to the compromise in O.S.No.4601/2000 to take a view that since the said suit was for declaration to the effect that the acts and things done by the plaintiff in respect of the suit property and formation of layout besides distribution of sites are binding on the defendants, the defendants contention cannot be accepted. The specific contention taken by the defendants that one Ravindra Babu acted as their power of attorney holder for entering into compromise and that the said GPA was a created one is a matter to be proved and established during trial on the merits of the case. It has further placed reliance on the order sheet in O.S.No.7191/2002 which discloses that the sons of Chandranna viz., Niranjanamurty, P.C.Murthy, P.C.Ramesh, P.C. Govardhan filed their suit against the plaintiff Society for permanent injunction. Their application for temporary injunction was dismissed on 10.09.2003 and ultimately they 11 filed a memo on 20.11.2004 for dismissing the suit as not pressed. The plaintiff in O.S.No.7191/2002 are none other than sons of Chandranna and grandsons of Patel Nanjundappa who are parties to partition deed dated 04.10.2002. These documents make it very clear that even after the partition on 04.10.2002, O.S.No.7191/2002 was dismissed. The sale deed date 24.06.2004 executed by Niranjana Murthy in favour of defendant No.2 and another sale deed executed by the three sons of Chandranna in favour of defendant No.2 are also subsequent to the declaration cum ratification deed dated 23.02.2000 and the compromise recorded in O.S.No.4601/2000. Since the defendant No.1 to 3 claim right, title interest and possession over the suit property through children of Chandranna and grandson of Patel Nanjundappa, going by the materials available on record it can be held that after the judgment of Supreme Court, the sons of late Patel Nanjundappa very consciously executed a declaration cum ratification deed in favour of the plaintiff on 23.02.2000 and therefore the possession as claimed by the 1st defendant over the suit 12 property cannot be believed. The trial court having come to conclusion that the plaintiff was in possession of the suit property on the date of the suit held that it was able to make out a prima facie case. It also held that the balance of convenience would lie in favour of the plaintiff and that it also faces more hardship than the defendant if injunction is not granted.
7. Questioning the correctness of the trial court the learned counsel for the appellant /1st defendant argued that the order of the trial court is capricious and arbitrary. His argument was that the trial court has ignored the basic principles for granting the order of temporary injunction. The injunction has to be granted in favour of the plaintiff only if he is able to prima facie show his possession over the suit property on the date of the suit. In this case the documents produced by the defendant show very well that the plaintiff society was not in possession on the date of the suit. The learned counsel submitted that while there is no dispute with regard to the fact that the land in Sy.No.23 of Pattanagere belonged to Patel Nanjundappa earlier and that 13 he and his sons executed an agreement of sale in favour of the plaintiff Society in the year 1984 and that this land and some other lands were acquired by the Government for the benefit of the plaintiff society, but after the Supreme court quashed the acquisition and ordered the government to put the land lords back in possession of the acquired lands, on 10.02.2006 there was delivery of possession of land in Sy.No.23 to the erstwhile owners. Niranjana Murthy one of the sons of Chandanna returned the compensation amount to the Government. Therefore when the possession came back to the family of the land owners in the year 2006, the stand that the plaintiff takes that the land owners once again executed a deed of declaration cum ratification deed to show its possession over the suit property is highly impossible to be believed. No sanctity can be attached to the transaction that the land owners entered into with the society after the entire acquisition was quashed and that one of the sons of Chandranna viz., Niranjana Murthy returned the compensation amount ot the Government. The sale transaction between the family of erstwhile landowners and 14 the defendants was after the supreme court judgment. Therefore the sale deed executed in favour of defendants are legal and valid. The 1st defendant was in possession of the suit property on the date of suit on the basis of valid sale deed. For the purpose of establishing a petrol bunk he applied for license from the concerned department and obtained the same. He also obtained permission from other departments. He referred to the documents that he has produced in that regard. He also argued that from the very plaint averments, it can be stated that the plaintiff was in possession on the date of the suit. The society cannot claim to be in possession and that it cannot also purchase an agricultural land. The compromise in O.S.No.4601/2000 cannot be given any importance. The trial court has ignored all these aspects of the matter and committed an error in exercising discretion to grant injunction in favour of the plaintiff. The learned counsel referred to the judgment of this court in the case of Muniyappa Vs. Geeta [2012 (2) KCCR 1433] to argue that if the physical possession of the 15 suit property was not with the plaintiff on the date of suit, injunction cannot be granted.
8. The learned counsel for the respondent argued that once the suit filed by the vendors of the defendants i.e., O.S.No.7191/2002 was dismissed as not pressed, the defendants cannot contend that they purchased the suit property and that they were in possession of the same on the date of the suit. The dismissal of the suit O.S.No.7191/2002 acts as resjudicata and estops the defendants from taking a contention claiming possession. On this point he referred to the judgment of the supreme court in the case of Amarendra Komalam and another Vs. Usha Sinha and another [(2005) 11 SCC 251]. His further point of argument was that on 23.02.2000 the sons and grandsons of Patel Nanjundappa executed declaration cum ratification deed, the possession of the plaintiff became lawful. This transaction was after the Supreme Court judgment with regard to acquisition of land and therefore there was retransfer of the entire land in Sy.No.23 to the plaintiff Society. There is no document to show that the 16 vendors took back the possession of the suit property so that the defendants can claim to be having possession on the date of the suit. The compromise in O.S.No.4601/2000 cannot be ignored. Actually this compromise ratified all the transactions and therefore the plaintiff's possession once again became lawful. The erstwhile owners did not challenge this compromise in O.S.No.7191/2002. The appellant's vendor are in fact estopped from dealing with the property after they executed the declaration cum ratification deed and the acceptance of compromise in O.S.No.4601/2000. in this regard he referred to the judgment of B.L.Sridhar and other Vs. K.M. Munireddy (Dead) and others [(2003) 2 SCC 355]. The finding given in O.S.No.7191/2000 that the plaintiff therein was not in possession is also not challenged. The trial court has rightly exercised discretion for granting injunction in favour of the plaintiff. Having regard to all these aspects of the matter, the discretion is found to have been exercised properly; the appellate court should not interfere with even though there is possibility for taking other view. Therefore he argued for dismissal of the appeal. 17
9. On considering the points argued by the learned counsel for the parties, I give my findings as below:
Before discussing the issues in controversy between the parties as has been made out by them it is necessary to trace the transactions chronologically. Patel Nanjundappa and his children executed an agreement of sale in respect of the plaintiffs society on 26.05.1984. Thereafter they also executed a power of attorney on 05.01.1985 in favour of the plaintiff. The BDA acquired the land and subsequently approved the layout plan on 31.10.1988. After this court quashed the acquisition, special leave petitions were filed before the Supreme Court in the year 1991. Hon'ble Supreme Court directed the return of the acquired land to the land owners by its judgment dated 21.02.1995. The plaintiff Society held a meeting with the land lords, paid further consideration amount to them and then the land lords were said to have executed declaration cum ratification deed on 23.02.2000. The plaintiff society filed a suit against the land owners, O.S.No.4601/2000 and in this suit a 18 settlement was arrived at between the parties. The sons and grandchildren of Nanjundappa filed a suit O.S.No.7191/2002. On 04.10.2002, there took place a partition among children of Chandranna. Niranjana Murthy one of the sons of Chandranna returned the compensation amount to the government on 31.08.2006. The special land acquisition officer delivered the possession of the acquired lands to the land owners on 10.10.2006. The children of Chandranna executed sale deeds in favour of 2nd defendant on 24.06.2004. The 1st defendant purchased the suit property on 23.03.2017.
10. Seeing the transaction as referred to above, it can be said that the whole dispute appears to have commenced again after the Hon'ble Supreme Court ordered the Government of Karnataka to return the acquired lands to the land owners. The plaintiff Society claims that the land owners once again started interfering with its possession of the property which were acquired by the government and therefore it paid further consideration amount to it and got obtained a deed called declaration cum ratification deed on 19 23.02.2000. In the plaint it is also stated that based on the declaration cum ratification executed by the land owners and in view of unnecessary harassment by the members of the plaintiff society, a suit O.S.No.4601/2000 came to be filed and in this suit that a settlement was said to have taken place. The grandchildren of Patel Nanjundappa also filed a suit O.S.No.7191/2002 and since in the suit their application for injunction was rejected, it appears that they withdrew the suit. The need for referring to these suits again is to say that the land owners and the society being very much very well aware of the judgment of the Supreme Court, again entered into transactions in defiance to the judgment of the Supreme Court. If the impugned order is read, it can be very well said that the trial court has proceeded on the ground that after the judgment of the Supreme Court, the land owners consciously put the plaintiff in possession of the land in Sy.No.23 which Patel Nanjundappa had transferred by executing an agreement in the year 1984. The trial court is of the opinion that by executing the confirmation and ratification deed, the land owners redelivered the 20 possession of the suit property to the plaintiff society. This is the basis for the trial court for holding that the plaintiff was in possession of the suit property on the date of the suit and therefore it has made out a prima facie case.
11. The trial court appears to have proceeded on a wrong footing that plaintiff has made out a prima facie case as it was in possession of the suit property on the date of the suit. Prima facie case means not only that the plaintiff must make out serious issues for trial, but also that the suit must appear to be not frivolous or vexatious. The suit should also appear to be maintainable in order that interim order in the nature of injunction could be granted pending disposal of the suit. Therefore the entire case must be examined in the light of these principles.
12. When the Supreme Court upheld the judgment of this court quashing the acquisition proceedings and directed the government to deliver back the possession of the acquired land to the land owners, obviously a question arises even at the stage of deciding an application for temporary 21 injunction, as to what sanctity can be attached to the transactions that took place subsequently which appear to be in utter disobedience of the spirit of the judgment of the Supreme Court. Till the government redelivered the possession of the acquired land to the land owners, they should not have entered into transactions like execution of confirmation and ratification deed in the year 2000. If they have really entered into such transactions, they only show their treacherous and deceptive acts. The defendant's counsel has produced a document to show that Niranjana Murthy returned the compensation amount as per the judgment of the Supreme Court on 31.08.2006 and thereafter the special land acquisition officer delivered the possession of the acquired land to him 10.10.2006. Therefore any transaction that might have taken place till 10.10.2006 cannot be given so much importance to hold that by virtue of the confirmation and ratification deed dated 23.02.2000 and the compromise in O.S.No.4601/2000, the plaintiff's got back possession of the entire acquired land including the suit property.
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13. O.S.4601/2000 was a suit for declaration that the ratification deed dated 23.2.2000 executed by the defendants would bind them and for perpetual injunction. Copy of the compromise petition is also produced by the plaintiffs. If it is perused it can be seen that the defendants in the said suit, namely Rajanna, Chandranna, Gangadharaiah, Basavarajaiah and Puttashankarappa all being sons of Nanjundappa agreed to ratify all the acts done by the plaintiff society as though done by themselves and confirmed such other acts, deeds and things done by the plaintiff in respect of this schedule property. This compromise in effect gives a semblance of right and title to the plaintiff. The plaintiff being a cooperative society cannot purchase an agricultural land. By virtue of the judgment of the Supreme Court, the Government of Karnataka was directed to return the acquired lands to the landowners. Therefore, if according to the plaintiff, this compromise gave them right and title, the said compromise should have been registered according to the provisions of the Indian Registration Act. It was not done. No credence can be given to this compromise. 23 The learned counsel for the respondent referred to judgment of the Supreme Court in B.L.Sridhar (supra) to argue that the very act of the landowners in executing a deed of declaration and ratification and entering into compromise in O.S.4601/2000 estopes them from taking a contrary view and to contend that the plaintiff was not the owner. As has been observed in the above paragraphs, to what extent these transactions can be given credence in view of the judgment of the Supreme Court is a question that arises and therefore in my opinion this ruling is not helpful to them.
14. The learned counsel for the respondent/plaintiff argued very much that the withdrawal of O.S.No.7191/2002 by the landowners acts as res judicata and in this regard he referred to the judgment of the Supreme Court in the case of Amarendra Komalam (supra). In my opinion no finding with regard to effect of withdrawal can be given in this appeal. Whether it amounts to res judicata or not is an issue to be decided first by the trial court and therefore this point of argument does not help the respondent to show that a prima facie case exists in their favour.
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15. Apart from what is discussed above, another important point that needs observation here is as to who was in possession of suit property as on the date of suit? The actual possession is the determining factor. The documents produced by the plaintiff do not disclose its actual possession of suit property on the date of the suit, rather the documents produced by the first defendant show that the actual possession was with him. The learned counsel for the respondent submitted while arguing that the defendant interfered with respondents' possession by attempting to dig the land for the purpose of constructing a petrol bunk. It is also stated in the plaint that on 23.03.2017, the first defendant attempted to dig foundation. The case of first defendant is also that he purchased the suit property for establishing a petrol bunk. The first defendant has produced some photographs showing the stage of construction of petrol bunk. They give a clear picture that by the time suit was filed, the work undertaken by the first defendant had reached progress to certain extent so as to say that the first defendant was in possession. Some other 25 documents produced by the appellant before the trial court are also produced in this appeal; and referring to these documents the appellant's counsel submitted that the trial court did not refer to them at all. Now if these documents are seen, it is possible to say that the appellant's/first defendants' possession over the suit property could be prima facie made out. The letter dated 20th June, 2017 shows that ESSAR Company issued a letter of offer to the first defendant appointing him as its franchisee for retail outlet to be commenced in the suit property on 22.07.2017, the Electrical Inspectorate of Government of Karnataka issued 'No Objection Certificate' after spot inspection. The Corporation of the City of Bengaluru (BBMP) also issued a trade licence for fuel station. On 07.09.2017, the Chief Fire Officer, Bengaluru West Circle, wrote a letter to the Commissioner of Police, Bengaluru City stating that his office had no objection for issuing licence for storage of 40 KL of HSD and 20 KL of MS in three separate underground tanks for retail outlet purpose. Similarly there are other documents that show that the first defendant obtained 26 required permission from other departments. If the concerned government departments and authorities issued licences and no objection certificates, they should be only after spot inspection. These documents clearly show spot inspection having been made. Therefore when the documents very apparently show the first defendant's possession over suit property as on the date of suit, if the trial court states that the respondents' possession was forth coming, it has to be stated such a conclusion was as a result of total non application of mind. There is no reference to documents produced by the first defendant. A decision to grant or not to grant temporary injunction should be taken by having regard to documents produced by either side parties; if this exercise is not done, it amounts to improper exercise of discretionary power. Therefore with this discussion, I come to conclusion that the impugned order needs to be set aside and temporary injunction passed by trial court set aside. As a result the following: 27
ORDER i. Appeal is allowed.
ii. Order of the trial court on I.A.No.I filed under Order 39 Rules 1 and 2 CPC is set aside. I.A. is dismissed.
iii. There is no order as to costs.
Sd/-
JUDGE sd