Karnataka High Court
Sri Munirama Reddy vs Smt Hanifa Begum on 7 September, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2023:KHC:32363
MFA No. 2672 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 2672 OF 2023 (CPC)
BETWEEN:
SRI MUNIRAMA REDDY
S/O LATE THORE SALLAPPA,
AGED ABOUT 59 YEARS,
YADAVANAHALLI, ATTIBELE HOBLI,
ANEKAL TALUK,
BENGALURU DISTRICT - 560 068.
...APPELLANT
(BY SRI. S KALYAN BASAVARAJ.,ADVOCATE)
AND:
1. SMT HANIFA BEGUM
W/O LATE K AMEER KHAN
AGED ABOUT 64 YEARS,
Digitally signed R/AT NO 907, A TYPE 2ND STAGE,
by AUSTIN TOWN,
DHANALAKSHMI
MURTHY BENGALURU 560 047.
Location: High (SINCE DECEASED BY LR'S
Court of
Karnataka VIDE ORDER DATED: 12.07.2023
CAUSE TITLE AMENDED ARE
LR'S OF DECEASED R-1)
2. SRI ADIL AMEER KHAN
S/O LATE K AMEER KHAN
AGED ABOUT 42 YEARS,
R/AT NO 907, A TYPE 2ND STAGE,
AUSTIN TOWN,
BENGALURU 560 047.
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MFA No. 2672 of 2023
3. SRI IQBAL AMEER KHAN
S/O LATE K AMEER KHAN
AGED ABOUT 57 YEARS,
R/AT NO 907,
A TYPE 2ND STAGE,
AUSTIN TOWN,
BENGALURU 560 047.
4. SRI SHAKTEEL AMEER KHAN
S/O LATE K AMEER KHAN
AGED ABOUT 52 YEARS,
R/AT NO 907,
A TYPE 2ND STAGE,
AUSTIN TOWN,
BENGALURU 560 047.
5. SRI HANIF AMEER KHAN
LATE K AMEER KHAN
AGED ABOUT 50 YEARS,
R/AT NO 907,
A TYPE 2ND STAGE,
AUSTIN TOWN,
BENGALURU 560 047.
6. SMT ARIFA BEGUM
LATE K AMEER KHAN
AGED ABOUT 40 YEARS
R/AT NO 79, S M LAYOUT,
OLD MADRAS ROAD,
NEAR INDIAN OIL PETROL BUNK,
HOSALKOTE
BENGALURU RURAL DIST 562 114.
7. SMT SHEHANAZ BEGUM
D/O LATE AMEER KHAN
AGED ABOUT 49 YEARS,
R/AT NO 42, R R FORUM STREET,
4TH MAIN, GRAPE GARDEN,
NEELASANDRA,
BENGALURU 560 047.
8. SMT FATHEEMA AFFROZ
W/O LATE S SHAMSHUDDIN
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MFA No. 2672 of 2023
AGED ABOUT 60 YEARS,
2ND STAGE, AUSTIN TOWN,
B D A HOUSES,
BENGALURU 560 047.
9. SRI SHEIK SHIRAJUDDIN
S/O LATE S SHAMSHUDDIN
AGED ABOUT 40 YEARS,
2ND STAGE, AUSTIN TOWN,
B D A HOUSES,
BENGALURU 560 047.
10. SRI SHEIK MOHIDDIN
S/O LATE S SHAMSHUDDIN
AGED ABOUT 38 YEARS,
2ND STAGE, AUSTIN TOWN,
B D A HOUSES,
BENGALURU 560 047.
11. SRI. K.R. SRIDHARA REDDY
S/O LATE K.Y. RAMA REDDY
AGED ABOUT 54 YEARS
RESIDING AT NO. 62/5
RESIDENT OF KONAPPANA AGRAHARA VILLAGE
BEGUR HOBLI
BENGALURU SOUTH TALUK.
12. MR MUHAMMAD AVUKKAL
S/O MR POCKAR AVULKKAR
AGED ABOUT 48 YEARS
R/AT AVUKKAL HOUSE,
PULIYAV, PARAKKADAVU,
KOZHIKODE,
KERALA 673 509.
13. MR SUBAIRMUTHIRAYIL
S/O MR MOOSSA HAJI
AGED ABOUT 51 YEARS
R/AT MUTHIRAYIL HOUSE,
VALAYAM POST, KALLACHI (VIA)
KOZHIKODE,
KERALA 673 517.
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MFA No. 2672 of 2023
14. MR ASHRA F
S/O MR AMMAD
AGED ABOUT 43 YEARS
R/AT 198 (163) VANATHANKANDI, VANIMEL,
NADAPURAM, VATAKARA, KOZHIKODE,
KERALA 673 506.
15. MR NOUSHADTHAYYULLATHIL
S/O MR POCKER
AGED ABOUT 48 YEARS
R/AT JATHIEYRI, THEYYULLATHIL HOUSE
PO CHERUMOTH
KERALA 673 509.
16. MR ABBOBACKER
S/O MR MOIDEEN
AGED ABOUT 62 YEARS
R/AT PULIYACHERI (H)
PULIYAVIL (PO) PARAKKADAVU
KOZHIKODE,
KERALA 673 509.
17. MR MAJEED
S/O MR MOJID HAJI
AGED ABOUT 51 YEARS
R/AT 3/231, MEETHALE PUNNAKKANDIYIL,
PURAMERI, PURAMERI PANCHAYATH
KOZHIKODE,
KERALA 673 503.
18. MR ABBOBACKER
S/O MR MAMMU
AGED ABOUT 65 YEARS
R/AT KARUVANTHAZHA KUNIYIL (H)
CHEKKLAD, PULIYAVIL,MADAPURAM
KOZHIKODE,
KERALA 673 509.
19. MR MAHMODDTHAVOLI
S/O MR SOOPPY
AGED ABOUT 54 YEARS
R/AT KIZHAKKAYIL HOUSE,
CHALAPPURAM, THUNVERI NADAPUCAM,
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MFA No. 2672 of 2023
KOZHIKODE,
KERALA - 673 509.
20. MR KORAN KANDIYIL ISMAIL
S/O MR POCKER HAJI
AGED ABOUT 41 YEARS
R/AT ARINGATTU CHALIL HOUSE
PO VALAYAM KALLACHI VIA
KOZHIKODE,
KERALA 673 517.
21. MR PARAYUILKUNJA VOOSHAMSUDHEEN
S/O MR KUNJAVOOMUSLIYAR
AGED ABOUT 60 YEARS
R/AT PARAYIL HOUSE,
PO AARATHANCODE
THRICHUR, KERALA.
22. MR MOOSSA
S/O MR ABDULLA
AGED ABOUT 50 YEARS,
R/AT NO 8/178,
PUTHIYOTTIL, IYYANKODE,
KOZHILKODE,
KERALA 673 504.
23. MR SYED HUMAYUN KHALID
S/O MR SYED ABDUL KHALIQ
AGED ABOUT 43 YEARS,
R/AT THE CANOPY,
G-202 AGARA ROAD, BABUSABPALYA
BENGALURU 560 043.
24. MR ABDULLA M
S/O MR IBRAHIM HAJEE
AGED ABOUT 54 YEARS,
R/AT MANJEERINDAVIDE HOUSE,
PULIYAVIL POST, PRAKKADAVU VIA
CALICUT,
KERALA 673 509.
25. MR KUNHABDULAA C K
S/O MR MUHAMMAD
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AGED ABOUT 46 YEARS,
R/AT CHETTAKANDIYIL HOUSE,
TANAKKOTURE POST,
PARAKKADAVU VIA CALICUT,
KERALA - 673 509.
26. MR. SYED HUMAYUN KHALID
S/O MR. SYED ABDUL KAHLIQ
AGED ABOUT 46 YEARS
RESIDING AT THE CANOPY, G-202
AGARA ROAD, BABUSABPALYA
BENGALURU - 560 043.
27. MR ABDUL AZEEZ P
S/O ABDULLA
AGED ABOUT 37 YEARS,
R/AT PULIYACHERI HOUSE
PULIYAVU POST, PRAKKAVADU VIA
KOZHILKODE, KERALA 673 509.
PARAKKAVADAVU(VIA) CALICUT, KERALA.
28. SALIM ACHERI
S/O MR KUNHABDULLA,
R/AT KURUVANNOOR,
BAITHUL AKSA, TUNERI POST,
NADAPURAM VIA VADAKRA,
KOZHILKODE,
KERALA 673 505.
29. MR BASHEER T C
S/O MR HASBULLA MOULAVI K
AGED ABOUT 44 YEARS,
R/AT MUBARAK, MANZIL POTHUVACHERI PO,
KADAVHIRA S O,
KANNUR, KERALA 670 621.
...RESPONDENTS
(BY SRI. MOHAMMED TAHIR, ADVOCATE FOR R-2 TO R-8, R-9,
R-10 AND R-11
SRI. SATISH S.K, ADVOCATE FOR
SRI. S.B. TOTAD, ADVOCATE FOR R-12 TO R-29
V/O/DT: 12.07.2023, R-2 TO R-7 ARE TREATED AS LR'S OF
DECEASED OF R-1)
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NC: 2023:KHC:32363
MFA No. 2672 of 2023
THIS MFA IS FILED U/O 43 RULE 1(r) OF CPC, AGAINST
THE ORDER DT.06.04.2023 PASSED ON I.A.NO.1 IN
OS.NO.318/2022 ON THE FILE OF THE IV ADDITIONAL SENIOR
CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU,
REJECTING IA NO.1 FILED U/O.39 RULES 1 AND 2 OF CPC.
THIS APPEAL, COMING ON ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal under Order 43 Rule 1(r) of CPC is filed by the plaintiff in O.S.No.318/2020 before the IV Addl. Senior Civil Judge, Bangalore, challenging the order dated 6.4.2023 passed on I.A.No.1 filed under Order 39 Rules 1 and 2 read with Section 151 of CPC, whereby the Trial Court has dismissed I.A.No.1 filed by the plaintiff.
2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court.
3. The plaintiff filed the suit before the Trial Court for declaration and permanent injunction. Along with the suit, the plaintiff filed I.A.No.1 under Order 39 Rules 1 and 2 of CPC seeking an order of temporary injunction restraining the defendants to put up any construction in the suit -8- NC: 2023:KHC:32363 MFA No. 2672 of 2023 schedule property. On service of suit summons, defendants appeared through counsel and filed written statement. After hearing the parties, the Trial Court by impugned order dated 6.4.2023 dismissed I.A.No.1 filed by the plaintiff. Being aggrieved by the same, the plaintiff has filed this appeal.
4. Heard the learned counsel appearing for the parties. Perused the impugned order.
5. The learned counsel for the appellant-plaintiff has contended that the suit schedule property has been purchased by the grandfather of the plaintiff, Nanjappa, vide registered sale deed 2.9.1946. The said Nanjappa died on 17.12.1997. During his lifetime, he had executed a Will dated 18.5.1992 in favour of plaintiff. The defendants have no right or title over the suit schedule property and they tried to interfere with the same. Hence, the plaintiff filed the suit in O.S.No.596/2016 for injunction. In the suit, the -9- NC: 2023:KHC:32363 MFA No. 2672 of 2023 defendants filed written statement claiming title over the suit schedule property on the basis of the registered sale deed dated 10.4.1981. Hence, the plaintiff withdrew the suit filed earlier and filed a comprehensive suit for declaration and injunction in O.S.No.318/2020. He further contended that the defendants are claiming title on the basis of the sale deed dated 10.4.1981 stated to have been executed by Nanjappa in favour of defendant Nos.3 to 10. It is very clear from the said sale deed that the property, which is sold by Nanjappa is Sy.No.54 and it is not the suit schedule property. Therefore, the defendants without any right or title over the suit schedule property are trying to interfere with the suit schedule property. He further contended that though the defendants took up a plea that Nanjappa had given an affidavit mentioning that there is discrepancy in the sale deed in respect of survey number, wherein the survey number is mentioned as Sy.No.54 instead of Sy.No.35/2, but to that effect, no rectification deed has
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NC: 2023:KHC:32363 MFA No. 2672 of 2023 been produced by the defendants before this Court. It is contended that in the sale deed dated 10.4.1981, it is mentioned that the vendor has purchased the property by sale deed dated 9.1.1948, the sale deed dated 9.1.1948 is related to Sy.No.54. Therefore, it is clear that property purchased by defendant Nos.3 to 10 is Sy.No.54 and not the suit schedule property. He further contended that defendant Nos.3 to 10 have sold *10.35 guntas of land in favour defendant Nos.12 to 29 vide *different registered sale deeds dated 17.12.2015. Even though in the sale deed dated 17.12.2015, survey number has been mentioned as Sy.No.35/2, since the vendor of defendant Nos.12 to 29 itself have no right or title over the suit schedule property, defendant Nos.12 to 29 cannot claim any right on the property on the basis of the said sale deed dated 17.12.2015. They have purchased property only in Sy.No.54 and they have no right over the property in Sy.No.35/2. Therefore, he contended that the defendants cannot enter into the suit * Corrected vide court order dated: 20.12.2023
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NC: 2023:KHC:32363 MFA No. 2672 of 2023 schedule property. In support of his contention, he has relied upon judgment of the Apex Court in the case of Colgate Palmolive (India) Ltd. -v- Hindustan Lever Ltd. reported in 1999 (7) SCC 1 and in the case of Bina Murlidhar Hemdev and others -v- Kanhaiyalal Lokram Hemdev and others reported in (1999) 5 SCC 222 (paragraphs 51 and 52).
He has further contended that since the plaintiff has disputed the sale deed, which is claimed by the defendants and the plaintiff has his claim and right on the basis of the registered sale deed dated 2.9.1946 and the Will dated 18.5.1992, his interest had been protected by the Trial Court earlier by granting an interim order of status-quo to be maintained in the suit schedule property. Instead of confirming that order, the Trial Court has erred in dismissing the I.A. Hence, he sought for allowing the appeal.
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6. Per contra, the learned counsel for defendant Nos.3 to 10 has contended that defendant Nos.3 to 10 have purchased the suit schedule property bearing Sy.No.35/2 measuring total extent of 3 acres 27 guntas situated in Konappana Agrahara Village, Begur Hobli, Bengaluru South Taluk vide registered sale deed dated 10.4.1981 from one Nanjappa to the extent of 1 acre 33 guntas and from one Vanagurkappa to the extent of 1 acre 34 guntas. The said property is purchased by the defendant Nos.3 to 10 under one single sale deed dated 10.4.1981. It is very clearly mentioned in the said sale deed that the property is in respect of Sy.No.35/2 and even in the schedule, the boundaries are in respect of Sy.No.35/2. Immediately after the purchase, katha has been transferred in the name of the defendants. Out of total extent of 3.27 acres, *10.35 guntas of land has been sold by defendant Nos.3 to 10 in favour of defendant Nos.12 to 29 vide registered sale *deeds dated 17.12.2015. Portion of the remaining property has been * Corrected vide court order dated: 20.12.2023
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NC: 2023:KHC:32363 MFA No. 2672 of 2023 acquired by NHAI and in the remaining portion, the defendants have constructed residential house and residing in the said house and they have also opened a Food Stall in the name and Style as Bismillah Hotel. He further contended that at no point of time, the plaintiff was in possession of the property. Therefore, the Trial Court after considering the materials available on record has rightly rejected I.A.No.1 filed by the plaintiff.
7. The learned counsel for defendant Nos.12 to 29 has contended that defendant Nos.12 to 29 have purchased the property from defendant Nos.3 to 10 vide registered sale *deeds dated 17.12.2015 measuring *10.35 guntas. Immediately after they purchased, their names have been entered in the revenue records. They have applied for conversion of land for non-agricultural purpose and *defendant Nos.9 and 10 have obtained necessary permission from the competent authority to construct * Corrected vide court order dated: 20.12.2023
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NC: 2023:KHC:32363 MFA No. 2672 of 2023 building on the suit schedule property and they have started construction.
Secondly, he contended that some portion of the property has been acquired by National Highway Authority of India during the year 2005 and compensation has been paid in respect of their vendor. At no point of time, the plaintiff or his ancestors had objected for payment of compensation. He further contended that Nanjappa died on 17.2.1997. He had sold the property in favour of defendant Nos.3 to 10 vide registered sale deed 10.4.1981. Till his death, at no point of time, he raised any objection or filed the suit for cancellation. In this connection, he has referred to Section 31 of The Specific Relief Act. He further contended that even though the plaintiff has claimed that he has Will dated 18.5.1992 in his favour executed by Nanjappa, he has not made any effort to change the revenue entries in his name. It is further contended that in the sale deeds dated 2.9.1946 and 10.4.1981,
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NC: 2023:KHC:32363 MFA No. 2672 of 2023 the boundaries are tallying. It is clear that the property sold by Nanjappa is Sy.No.35/2. Therefore, it is very clear that plaintiff is not in possession of the property. The Trial Court after verifying the records has rightly dismissed I.A.No.1.
8. Heard the learned counsel for the parties. Perused the impugned order.
9. It is not in dispute that the plaintiff filed the suit in O.S.No.596/2016 for injunction. In the said suit, the defendants have filed written statement and contended that they have purchased the property vide registered sale deed. Later, the plaintiff withdrew the suit and filed a comprehensive suit in O.S.No.318/2020 for declaration and injunction. The specific case of the plaintiff is that the suit schedule property was originally purchased by Nanjappa vide registered sale deed dated 2.9.1946. The claim of defendant Nos.3 to 10 is that they have purchased the suit schedule property from
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NC: 2023:KHC:32363 MFA No. 2672 of 2023 Nanjappa vide registered sale deed dated 10.4.1981. In the said sale deed, it is mentioned that Nanjappa had purchased the property on 9.1.1948. Therefore, it is the contention of the plaintiff that what is purchased on 9.1.1948 is Sy.No.54 and not Sy.No.35/2 and what is sold by Nanjappa in the sale deed dated 10.4.1981 is Sy.No.54. Even though it is mentioned in the sale deed dated 10.4.1981 that Nanjappa has purchased the property on 9.1.1948, it is clearly mentioned that the property, which Nanjappa and Vanagurkappa wants to sell in favour of defendant Nos.3 to 10 is 3 acres 27 guntas in Sy.No.35/2. Even the schedule mentioned in the sale deed dated 10.4.1981 is Sy.No.35/2. It is also not in dispute that from the date of sale deed, the revenue records stands in the name of the defendants. Later, defendant Nos.3 to 10 have sold *10.35 guntas of the property in favour of defendant Nos.12 to 29 by registered sale *deeds dated 17.12.2015. *Defendant Nos.9 and 10 have obtained permission for conversion of * Corrected vide court order dated: 20.12.2023
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NC: 2023:KHC:32363 MFA No. 2672 of 2023 the land from the competent authority. They have also obtained plan for construction of the building. Katha stands in the name of the defendants. Therefore, it is very clear that as on the date of the filing of the suit, the *defendant Nos.2 to 29 are in possession of the property and they have started construction on the suit schedule property.
In respect of defendant Nos.3 to 10, it is contended that they have already constructed building and they are residing in the portion of the suit schedule property and in the portion of the property, they have opened a food stall.
10. Under the circumstances and in the interest of justice, I am of the opinion that the defendants cannot be restrained from putting up construction and they can be allowed to carry out construction of the building in the suit schedule property in accordance with law after * Corrected vide court order dated: 20.12.2023
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NC: 2023:KHC:32363 MFA No. 2672 of 2023 obtaining necessary permission from the competent authority.
11. In the result, the following order is passed:
ORDER
a) The appeal is disposed of.
b) The order dated 6.4.2023 passed on I.A.No.1 in O.S.No.318/2020 by the IV Additional Senior Civil Judge, Bangalore, is confirmed.
c) However, *defendant Nos.9 and 10 are allowed to carry out construction of the building *in accordance with law and the same is made subject to the ultimate decision of the suit. If any third party interest is created upon completion of the construction, the deeds in question shall clearly stipulate that the matter is sub-judice and all sales shall be subject to the ultimate decision of the suit.
d) The Trial Court is directed to dispose of the suit in accordance with law as expeditiously as * Corrected and inserted vide court order dated: 20.12.2023
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NC: 2023:KHC:32363 MFA No. 2672 of 2023 possible not later than ten months from the date of receipt of copy of this order, without being influenced by any observations made by this Court.
e) All the contentions of the parties are kept open
f) Parties are directed to co-operate for the early disposal of the suit.
g) Registry is directed to return the original records to the trial court forthwith.
Sd/-
JUDGE DM List No.: 1 Sl No.: 31