Karnataka High Court
Dr. G. Mamathadevi vs Sri. Lakshmaiah on 13 December, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
MISCELLANEOUS FIRST APPEAL NO.7885/2017 (CPC)
BETWEEN:
1. DR. G. MAMATHADEVI
W/O DR. V. THYAGARAJU
AGED ABOUT 40 YEARS
2. DR. V.THYAGARAJU
S/O LATE VEERABHADRA REDDY
AGED ABOUT 44 YEARS
BOTH ARE RESIDING AT
NEAR SREERAMA TEMPLE,
NEWPET, NEKAL TOWN, ANEKAL,
BENGALURU-562 106.
3. SAYAD RAHAMATHULLA
S/O S. AZMATHULLA
AGED ABOUT 36 YEARS
RESIDING AT NO.1
SUIRES TERRACE,
PORT MACQUARIE,
NSW-2444, AUSTRALIA.
REPRESENTED BY HIS GPA HOLDER
S. AZMATHULLA,
S/O LATE SYED REHMAN
AGED ABOUT 65 YEARS
RESIDING AT NO.80,
CONCORDE CUPPARTINE,
2
NEELADRIROAD,
ELECTRONIC CITY 1ST PHASE,
BENGALURU - 560 100.
4. N. NANJUMUNISSA
W/O A. ATZAL
AGED ABOUT 34 YEARS
RESIDING AT NO.249, 22ND CROSS,
28TH MAIN, HSR LAYOUT, SECTOR-II,
BENGALURU - 560 102.
5. DR. A. SEKARAN
S/O SRI. ADIMOOLAN
AGED ABOUT 61 YEARS
R/AT NO.22, 2ND MAIN ROAD,
RAMACHANDRA REDDY LAYOUT
HOSAPALYA ROAD,
NEAR AYYAPPA TEMPLE
MANGAMMANAPALYA
BENGALURU - 560 068. ... APPELLANTS
(BY SRI J.M.RAJANNA SHETTY, ADVOCATE
FOR A1 TO A4;
SRI K.SHIVASHANKAR, ADVOCATE FOR A5)
AND:
1. SRI. LAKSHMAIAH
S/O LATE SRI. VENKATAPPA
AGED ABOUT 54 YEARS
2. SMT.MUNILAKSHMAMMA
D/O LATE SRI. VENKATAPPA
AGED ABOUT 49 YEARS
3. SRI LAKSHMI NARAYANA
S/O LATE SRI. VENKATAPPA
AGED ABOUT 44 YEARS
3
4. SMT.NAGARATHNAMMA
D/O LATE SRI. VENKATAPPA
AGED ABOUT 39 YEARS
ALL ARE RESIDING
AT KORANAHALLI,
ALAGURI POST,
CHIKKABALLAPURA TALUK,
KOLAR DISTRICT,
REPRESENTED BY GENERAL
POWER OF ATTORNEY HOLDER
SRI. M. NAGARAJ
S/O SRI. MUNIYAPPA
AGED ABOUT 42 YEARS,
R/AT NO.191/A,
ITI LAYOUT, HOSAPALYA ROAD,
M.G.PALYA, BOMMANAHALLI,
BENGALURU-560 068.
... RESPONDENTS
(BY SRI B.N.JAYADEVA, ADVOCATE FOR C/R)
THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) OF THE
CPC, AGAINST THE ORDER DATED 09.06.2017 PASSED ON
I.A.NO.2 IN O.S.NO.8884/2015 ON THE FILE OF THE 37TH
ADDITIONAL CITY CIVIL JUDGE (CCH-38), BENGALURU CITY,
ALLOWING I.A.NO.2 FILED UNDER ORDER 39 RULES 1 AND 2 OF
CPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 03.12.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
4
CAV JUDGMENT
This MFA is filed challenging the order dated 09.06.2017 passed on I.A.No.2 in O.S.No.8884/2015 by the XXXVII Additional City Civil and Sessions Judge, Bengaluru City.
2. Heard the learned counsel appearing for the appellants. Though the respondents appeared through the counsel, the counsel did not choose to argue the matter hence, argument of the respondents is taken as nil.
3. The factual matrix of the case of plaintiffs before the Trial Court is that they are the absolute owners in possession of the suit schedule property bearing Sy.No.18/11 measuring to an extent of 8 guntas situated at Yellukunte village, Begur hobli, Bengaluru South Taluk which is morefully described in the schedule. It is contended that the plaintiffs have engaged power of attorney holder since they were not in a position to look 5 after and manage the schedule property and khatha of the schedule property stands in the name of their mother Smt. Kaveramma and in revenue records also disclose her name and after death of Kaveramma, the plaintiffs are in physical possession and enjoyment of the suit schedule property as owners and they are paying the tax. In fact, M/s ITI Employees Housing Cooperative Society trying to interfere with their lawful possession and made an attempt to encroach upon the plaintiffs' property. The mother of the plaintiffs filed the suit in O.S.No.6069/2005 for the relief of injunction over the suit schedule property and the said suit was decreed. Being aggrieved by the judgment and decree, the ITI Employees Housing Cooperative Society preferred an appeal before the High Court in R.F.A.No.1959/2011 and the said appeal also came to be dismissed. The plaintiffs have protected the suit schedule property by fencing the same with compound wall. When such being the case, the defendants having no manner of right, title and interest 6 with respect to the suit schedule property are trying to interfere with the plaintiffs' lawful possession of the suit schedule property and damaged the compound wall and sheds. Hence, the plaintiffs filed the suit for the relief of permanent injunction and inter alia sought for the relief of temporary injunction reiterating the averments made in the plaint in the affidavit filed in support of the application.
4. The defendants appeared and defendant Nos.2 and 3 and 4 and 5 have filed their written statement and objections to I.A.No.II. The main contention of the defendants that suit is not maintainable and GPA has no right to file the suit. It is contended that one M Kaverappa was the owner of the suit schedule property and one N S Shankar Shetty had purchased the property from Kaverappa and others through a registered sale deed dated 23.08.2006. Hence, the plaintiffs have no right in the said property. It is contended that ITI Employees Housing Cooperative Society formed the layout in various survey 7 numbers of Yellukunte Village including the suit schedule property. The land was acquired by BDA and approved layout was formed by the said society. One Shakuntala Narendra had purchased the site No.188 from the said society under a sale deed dated 27.01.1997 measuring east to west 40 feet and north to south 63+64/2 totally measuring 2540 square feet and kahtha has been changed in her name and thereafter she had executed the registered sale deed in favour of H N Krishna Reddy on 22.04.2004 who in turn sold the said site in favour of defendant Nos.2 and 3 jointly on 01.04.2015 and thereafter, katha also transferred to their names in respect of site No.188 by BBMP. The plaintiffs have no right over the suit schedule property much less site No.188. It is submitted that M Kaverappa who is grandson of one Smt. Kaveramma already sold suit schedule property in favour of one Shankara Shetty under a registered sale deed dated 23.06.2006. Hence, the plaintiffs have no prima facie case. 8
5. Defendant Nos.4 and 5 also field the written statement contending that they have purchased item No.189 from ITI Employees Housing Cooperative Society measuring east to west 40 feet and north to south 61+64/2 square feet from Mahesh M R and S P Garg under a registered sale deed dated 10.04.2015. It is submitted that vendor of defendant Nos.4 and 5 had purchased this site from one Narayan under registered sale deed dated 05.05.2014 and the said Narayan purchased the said site from the said society through registered sale deed dated 02.05.1996.
6. The Trial Court having considered the pleadings of the parties framed the following points:
1. Whether plaintiffs have made out prima facie case?
2. In whose favour balance of convenience lies?9
3. Whether plaintiffs will be put to irreparable loss and injury in the event of refusal of temporary injunction?
4. What order?
7. The Trial Court after considering the pleadings of the parties and documents, answered the said points as affirmative and granted the relief of temporary injunction in favour of the plaintiffs. Being aggrieved by the said order, the present appeal is filed before this Court.
8. The learned counsel for the appellants would vehemently contend that the plaintiffs have not placed any iota of evidence before the Trial Court such as title deed to the property of themselves or by their ancestors and besides no revenue documents to show that they got possession over the suit schedule property. Admittedly, the property bearing Sy.No.18/11 of Yellukunte village stands in the name of one N S Shankar Shetty who got the same by registered sale deed dated 23.08.2006 and RTC also 10 stands in his name and there is no presumption. The counsel also would vehemently contend that the Trial Court fails to take note of the fact that the non-availability of any document to eschew the possession of the suit schedule property and Court merely relies upon the earlier proceedings taken place between the ITI Employees House Building Society and the plaintiffs in R.F.A.No.1959/2011 and granted the temporary injunction. The counsel also would vehemently contend that the Trial Court has come to a conclusion that the sites of the defendants bearing No.188 and 189 are not part of Sy.No.18/11 then, granting of interim order against the defendants is not sustainable in law. When the Trial Court comes to the conclusion that both the properties are distinct properties, ought not to have granted the relief. Hence, prayed this Court to set aside the order of the Trial Court.
9. Having heard the learned counsel appearing for the appellants and considering the grounds urged in the 11 appeal, the points that would arise for consideration of this Court are:
1. Whether the Trial Court committed an error in allowing I.A.No.II and whether it requires interference of this Court?
2. What order?
Point No.1:
10. Having heard the learned counsel appearing for the respective parties and also on perusal of the material available on record it discloses that the case of the plaintiffs that the property in Sy.No.18/11 stands in the name of the plaintiffs and all the revenue records stands in the name of the plaintiffs. It is the contention that earlier, the society has suffered and order of injunction in O.S.No.6069/2005 and R.F.A.No.1959/2011 which was filed by the society also dismissed. The Trial Court also taken note of the fact that defendant Nos.2 and 3 have purchased the site from the vendor and other defendants also claim that they have 12 purchased the site from their vendor but the property belongs to the said society and the said society formed the sites and sold the same to their members.
11. It is also important to note that the plaintiffs have also produced the copy of notification in respect of land acquired by the Government of Karnataka to form ITI employees housing cooperative society layout. It discloses that the said society formed the layout in Sy.No.16/5, 16/5a and 16/b and other survey number of Yellukunte village and Sy.No.18/11 which the plaintiffs claim not acquired by the Government of Karnataka to form the layout by the said society. The claim of the plaintiffs that Sy.No.18/11 measuring 8 guntas has been left out in the acquisition proceedings. Hence, the Trial Court comes to the conclusion that when the same was left out, forming of sites i.e., site No.188 and 189 in Sy.No.18/11 does not arise. The Trial Court also taken note of GAP holder of the plaintiffs had written an application to the BDA stating that 13 whether site No.181 to 191 of ITI Employees Housing Cooperative Society have been shown in layout. A reply was given by the BDA that these sites not been shown in said society layout and also there is an intimation by Special Land Acquisition Officer, Bangalore to that effect that Sy.No.18/11 was not acquired to form a layout of said society and the suit schedule property is not the part of society.
12. It is also important to note that the suit was filed against the said society earlier and the same was decreed in favour of the plaintiffs and against that order, an appeal was filed by the said society and the said appeal was dismissed. The Trial Court taken note of observation made in paragraph 24 and 25 of the RFA wherein in paragraph 25 held that if the appellants property being encroached by the respondent No.1, it is always open to the appellants to file a comprehensive suit and liberty also reserved to respondent No.1 to challenge the sale deed dated 23.08.2006 by filing 14 a duly constituted suit. The very contention of defendant that property was already sold on 23.08.2006. When such observation is made in the judgment of RFA, they have to seek for appropriate relief when the liberty was given. The Court taken note of the fact that both the properties are distinct and plaintiffs are claiming in Sy.No.18/11 moreover, defendants are claiming site No.188 and 189. It is important to note that the property was not acquired and revenue survey was conducted boundaries of Sy.No.18/11 also been fixed and even notice was given to the adjacent owners. Trial Court also taken note of the said fact while answering point Nos.2 and 3 that judgment and decree is in favour of the plaintiffs and RFA which was filed against the said judgment and decree also dismissed, and hence, rightly comes to the conclusion that there is no prima facie case in favour of the plaintiffs and balance of convenience lies in favour of the plaintiffs and if injunction is not granted, it would leads to irreparable loss and injury and 15 prima facie held that site Nos.188 and 189 are not part of Sy.No.18/11 and comes to the conclusion that there is no merit in the contention of the defendants. Hence, I do not find any force in the contention of the appellants counsel that Trial Court has committed an error. Accordingly, I answer the above point as negative.
Point No.2:
13. In view of the discussions made above, I pass the following:
ORDER The miscellaneous first appeal is dismissed.
Sd/-
(H.P. SANDESH) JUDGE SN