Disposed

Sri G Raja v. Smt Muniyamma

Karnataka HC26 Oct 2021MFA/2114/2021

Case brief

AI extract

What is this about?

In a first appeal against the rejection of an application for repair works on disputed property, the High Court held that due to the serious dispute regarding possession, the application could not be disposed of. The Court reserved liberty for the appellant to file a fresh application with detailed particulars and directed the consolidation of two pending suits on the same property.

What did the court decide?

Liberty granted to appeal to file a fresh application with particulars of repairs, estimates, and the portion requiring work.

Sri G Raja Vs Smt Muniyamma — Contract and Commercial Disputes | Karnataka HC (2021)

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M.F.A.NO.2114/2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26^TH DAY OF OCTOBER 2021

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BEFORE

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THE HON’BLE MRS JUSTICE K.S.MUDAGAL

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MISCELLANEOUS FIRST APPEAL NO.2114/2021(CPC)

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BETWEEN:

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SRI. G. RAJA, AGED ABOUT 59 YEARS, S/O LATE SRI. GURAPPA, R/AT NO.297, JAI SHREE RAM ROAD, 4^TH CROSS, MUNIKALAPPA LAYOUT, OPP. APNA BAZAAR, BENGALURU – 560 016. ..APPELLANT

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(BY SRI S.KALYAN BASAVARAJ, ADVOCATE)

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AND:

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SMT. MUNIYAMMA,

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W/O LATE LAKSHMANA,

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AGED ABOUT 59 YEARS,

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SRI. L.CHANDRASHEKAR, S/O LATE LAKSHMANA, AGED ABOUT 39 YEARS,

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SMT. AKKAMMA, W/O LATE KRISHNAPPA, AGED ABOUT 64 YEARS, ALL ARE R/AT NO.297, JAI SHREE RAM ROAD, 4^TH CROSS, BASAPPA LAYOUT,

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OPP. APNA BAZAAR, RAMAMURTHINAGAR, DOORVANINAGAR POST, BENGALURU – 560 016. … RESPONDENTS

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(BY SRI. J.R.JAGADISH, ADVOCATE FOR R1 AND R2; V/O DATED 07.10.2021, NOTICE TO R3 IS HELD SUFFICIENT)

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M.F.A.NO.2114/2021

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 29.03.2021, PASSED ON I.A.NO.9 IN O.S.NO.1685/2017, ON THE FILE OF THE XXVII ADDITIONAL CITY CIVIL JUDGE, BENGALURU CITY, DISMISSING THE I.A. FILED UNDER ORDER XXXIX RULE 4 OF CPC.

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THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Heard both side.

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Aggrieved by rejection of his application for permission to carryout repair works in the suit schedule property, plaintiff has filed this appeal.

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Appellant filed O.S.No.1685/2017 against the respondents for declaration of his title and declaration with regard to Gift Deed dated 10.02.2012 executed by of defendant No.1 in favour of defendant No.2, for possession of ‘B’ schedule property and for permanent injunction.

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Respondent Nos.1 to 3 are defendant Nos.1 to 3 in the suit. For the purpose of convenience, parties will be referred to henceforth according to their ranks before the trial Court.

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M.F.A.NO.2114/2021

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Respondent Nos.1 and 2 are the wife and

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son of late Lakshmana. Said Lakshmana is the elder brother of plaintiff, defendant No.3 is the sister of plaintiff and late Lakshmana. The subject matter of the suit is the property bearing site No.7 and building situated thereon. The entire property is shown as schedule-‘A’ property. Dimensions of the property are as follows:

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East to West:

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towards the North by:50 feet, South by:50 feet and

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North to South ; towards the East by : 30 Feet and towards the West by : 9 Feet, bounded on the East by: Site No.8, West by: 20 Feet Road, North by: Drainage, South by: Nyathappa’s property.

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Schedule ‘B’ property is a structure of

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20’ x 30’ dimension in schedule ‘A’ property. The original owner of schedule ‘A’ property was one

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A.Nyathappa. He sold that property to Venkataramanappa, Chikkavenkataramanappa and Muniyappa, sons of Venkatagiriyappa under the

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M.F.A.NO.2114/2021

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registered sale deed dated 04.12.1978. The purchasers were relatives of the parties to this suit.

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Defendants claim that Venkataramanappa, Chikkavenkataramanappa and Muniyappa sold schedule-‘A’ property to Lakshmana under an unregistered sale deed dated 04.09.1981. Defendants claim that Lakshmana constructed building on plaint ‘A’ schedule property after he purchasing the property.

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The plaintiff claims that those vendors executed unregistered sale deed in his favour and he was put in possession of the property and he constructed the building. Lakshmana died in the year 2005. After his death, khatha of the property was changed in the name of Muniyamma-defendant No.1. On 10.02.2012 she executed the registered gift deed in favour of defendant no.2. Admittedly, there are three tenements in ‘A’ schedule property. One portion is in the possession of plaintiff, other portion is in the possession of defendant Nos.1 and 2 the heirs of

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M.F.A.NO.2114/2021

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late Lakshmana and the third portion is in the possession of defendant No.3 the sister.

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Defendant No.2 filed O.S.No.661/2012 against the plaintiff before the II Addl. Senior Civil Judge, Bengaluru Rural District, Bengaluru. In that suit, defendant No.2 claimed that there was passage between tenements of the present plaintiff and defendants and the present plaintiff was trying to put up construction on that passage and sought for permanent injunction. It is submitted that he also filed an application for temporary injunction for restraining the defendants from construction of the building and pending that suit, plaintiff went on with the construction despite there being temporary injunction order.

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10. Plaintiff claims to have purchased the plaint

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schedule ‘A’ property from the same vendors under the registered sale deed dated 15.11.2016 and the consent deeds dated 21.11.2016 and 24.01.2017. On the basis of the said sale deeds, he filed O.S.No.1685/2017 claiming that to validate the earlier sale transactions in

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M.F.A.NO.2114/2021

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his favour, the subsequent sale deeds dated 15.11.2016, consent deeds dated 21.11.2016, 24.01.2017 were executed. In the suit he filed an application seeking temporary injunction against the defendants to restrain them from alienating the suit schedule property.

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On appearance of the defendants in the suit, pursuant to the application for temporary injunction, the trial Court by order dated 28.04.2017 directed both the parties to maintain status-quo. It is submitted that now the said matter is pending for defendants evidence. At that stage, plaintiff filed application under Order XXXIX Rule 4 of CPC seeking modification of the order dated 28.04.2017 and permission to the plaintiff to carryout repair works in suit schedule-‘A’ property. He claims that defendants are in permissive possession on schedule-‘B’ property and due to rains, property is dilapidated and requires immediate repairs.

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M.F.A.NO.2114/2021

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The trial Court by impugned order rejected

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the said application on the ground that there is serious dispute with regard to possession of the property.

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Sri. S.Kalyan Basavaraj, learned counsel for appellant submits that, admittedly plaintiff is in possession of one portion of the property, due to heavy rains that has dilapidated and requires urgent repairs. He submits that rejection of the application of the plaintiff for carryout repairs is likely to damage the entire property.

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Sri J.R.Jagadish, learned counsel for respondent Nos.1 and 2 submits that in the guise of repairs, the plaintiff is trying to put up construction on common passage. He further submits that now unregistered sale deed executed in favour of Lakshmana is impounded and sent to the Competent Authority for calculating duty and penalty payable. He submits granting permission to repair the building amounts to violation of the order passed in O.S.No.661/2012.

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M.F.A.NO.2114/2021

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Admittedly, plaintiff and defendants are in

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possession of three different portions of suit schedule‘A’ property. Both rival parties claim that other one is in permissive possession of the property. The subject matter of the present suit and O.S.No.661/2012 are one and the same. Under such circumstances, both the suits should have been clubbed and adjudicated together.

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Plaintiff claims that he is seeking to repair the portion of property which is in his possession. Whereas, defendant Nos.1 and 2 claim that plaintiff is putting up construction on the common passage and in the guise of repair, he is putting up additional construction. In the application, plaintiff has not stated what is the nature of the repair he wants to carryout and exactly in which portion he wants to carryout construction work. He has not placed any materials to show the nature of damages caused to the property.

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Under such circumstances, if really the building requires any immediate repair to avoid any damage to the property, plaintiff should have got the

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M.F.A.NO.2114/2021

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damages and the required repairs assessed by an engineer and submitted the said report to the Court. Then the Court could have considered that. Liberty is given to the plaintiff to file fresh application with particulars of required repairs and the estimation and in which portion he wants to carryout repairs. Reserving such liberty to the appellant/plaintiff, the appeal is disposed of.

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The suit in O.S.No.661/2012 pending on the file of II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, shall be transferred to the Court of XXVII Additional City Civil Judge, Bengaluru City (CCH9) for disposal along with O.S.No.1685/2017. The trial Court shall consolidate both the suits together and dispose of them in accordance with law.

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The plaintiff/appellant is permitted to file fresh application as per the observations made above. If such application is made, the trial Court shall hear both the parties and dispose of the same expeditiously.

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M.F.A.NO.2114/2021

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All the rival contentions of the parties are left

open.

Sd/-

JUDGE

pgg

Sri G Raja v. Smt Muniyamma

Case brief

What is this about?

What did the court decide?

Sri G Raja v. Smt Muniyamma

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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