Allowed

Radhamani. M. K. v. Girish. M

Karnataka HC22 Oct 2021MFA/3829/2021

Case brief

AI extract

What is this about?

An appellate court allowed the First Appeal against an order refusing temporary injunction. It held there was a triable issue and perversity in the lower court's view that the plaintiff's title became void after the quashing of land acquisition proceedings, citing subsequent civil decrees validating the title.

What did the court decide?

Impugned order set aside; Application No.1 allowed; Defendants restrained from construction or changing the nature of the property pending suit disposal.

Radhamani. M. K. Vs Girish. M — Property and Title | Karnataka HC (2021)

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MFA No.3829/2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND 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.3829/2021(CPC)

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BETWEEN :

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RADHAMANI M.K. W/O. S.M.BALAKRISHNA AGED ABOUT 74 YEARS R/AT NO. 405, 9^TH MAIN ROAD 1^ST BLOCK, KALYANNAGAR BANGALORE - 560 042 …APPELLANT

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(BY SRI K.B.S.MANIAN, ADVOCATE)

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AND :

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GIRISH.M S/O. MANJUNATH T SHETTAR AGED ABOUT 49 YEARS

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SHUBA GIRISH. M W/O. GIRISH. M AGED ABOUT 44 YEARS

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R1 & R2 ARE R/AT NO.6.1, S.J.PALYA MAIN ROAD NEAR GOVT. PRIMARY SCHOOL S.J.PALYA, BANGALORE-560 029

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P. B. VIJAYASHANKAR S/O. LATE BASAPPA.S AGED ABOUT 46 YEARS R/AT BASAPPA BUILDING PATTANAGERE GRAMA RAJARAJESHWARI NAGAR BANGALORE-560 098 …RESPONDENTS

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(BY SRI H.T.JAGANNATHA, ADVOCATE FOR C/R1 & R2; SRI R.S.RAVI, ADVOCATE FOR R3)

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MFA No.3829/2021

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THIS MFA FILED UNDER ORDER XLIII RULE 1(r) OF CPC PRAYING TO SET ASIDE THE ORDER DATED 13.08.2021 PASSED BY XVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-16) IN O.S.NO.4053/2021 ON IA NO.1 FILED U/O.XXXIX RULE 1 AND 2 OF CPC.

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THIS MFA HAVING BEEN HEARD AND RESERVED ON 27.09.2021 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Aggrieved by the rejection of her application for temporary injunction by the trial Court, the plaintiff has preferred the above appeal.

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The appellant filed O.S.No.4053/2021 against the respondents for permanent injunction restraining them from interfering with her peaceful possession and enjoyment of the suit schedule property, from proceeding with any construction and for mandatory injunction for removal of construction materials and structures put up on the suit schedule property.

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The subject matter of the suit is residential site bearing Plot No.207, Pattanagere Village, Kengeri Hobli, Bengaluru South Taluk measuring 30” x 40”. The

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MFA No.3829/2021

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appellant was the plaintiff and the respondents were the defendants before the trial Court. For the purpose of convenience, the parties will be referred to henceforth as per their ranks before the trial Court.

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Some of the admitted facts of the case are

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as follows:

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(i) The plaintiff was the former employee of Bharat Heavy Electrical Limited (‘BHEL’ for short). For the purpose of the employees of BHEL, REMCO (BHEL) House Building Co-operative Society Ltd. (‘the Society’ for short) was formed in the year 1984-1985.

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(ii) The said Society entered into agreement with several land owners of the village for the purpose of forming layout. Survey No.25 was one of such lands. One Basappa father of defendant No.3 was the owner of the said land. The society entered into agreement with said Basappa and had taken possession of the said property. The plaintiff being member of the said Society was allotted site No.207 carved out of Survey No.25.

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(iii) Under the preliminary and final notifications dated 16.09.1986 and 03.10.1987, the Bengaluru

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Development Authority (‘BDA’ for short) approved residential layout plan submitted by the Society on 31.10.1988.

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(iv) The Government had acquired several lands for several housing Societies in Bengaluru. The said owners had challenged those acquisitions before this Court in W.P.No.17775/1981 and connected petitions. The owners of Survey No.25 also challenged the acquisition proceedings.

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(v) The possession of the site was given to the plaintiff under the Possession Certificate. On 16.11.1992, the Society executed registered sale deed in favour of the plaintiff in respect of said site. On that basis, khata was changed in her name and she was paying property taxes all along.

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(vi) This Court connecting all similar matters by judgment dated 18.06.1991 quashed the acquisition proceedings. The Society and other similar societies were parties to the said writ petition.

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(vii) Aggrieved by the judgment of this Court quashing the acquisition proceedings, the Society

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preferred appeal before the Hon’ble Supreme Court of India.

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(viii) The Hon’ble Supreme Court initially had granted stay of the judgment of this Court. Finally the appeals preferred by the Society were dismissed on 21.02.1995. It was ordered 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 lands or not and the land owners shall refund the amounts received by them as compensation or otherwise in respect of their lands.

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The plaintiff claims that since the layout was already formed and several purchasers had constructed the buildings, the Society entered into out of Court settlement with the land owners. She further claims that the landowners executed Declaration cum Ratification Deed on 02.03.2000 and the landowners symbolically received possession. The land owners returned the compensation in compliance with the judgment of the Hon’ble Supreme Court, but under the Declaration cum

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Ratification deed, physical possession continued with the society and the allottees.

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The plaintiff further claims defendant No.3’s father was given additional consideration in money and by way of four sites in developed layout in consideration of relinquishment of his interest in Survey No.25. The land owners filed Contempt Petition Nos.224-226/2005 before the Hon’ble Supreme Court alleging violation of the judgment dated 21.02.1995. In those proceedings, the society produced Declaration cum Ratification Deed and the Land Acquisition Officer filed memo reporting that the Society has restored the lands to the owners. Therefore the Hon’ble Supreme Court on 01.05.2007 dropped those proceedings.

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On 14.08.2009, family members of defendant No.3 effected partition in the ancestral properties under registered partition deed. In that they claimed that since the acquisition proceedings were dropped, they continued to be the absolute owners of the property bearing old Survey No.25 and present

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Survey No.25/4. In the said partition 3 acres 1 guntas in Survey No.25/4 said to be allotted to defendant No.3.

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On the basis of the said partition deed, defendant No.3 on 22.03.2010 got converted the said land for nonagricultural use. On 09.07.2018 defendant No.3 executed gift deed in favour of his wife Yamuna in respect of Survey No.25 and obtained khata from the Bruhat Bengaluru Mahanagara Palike bearing khata No.209/25/4/2 in Survey No.25, Pattanagere Village, Bengaluru South Taluk. On 17.09.2018, he executed rectification deed to the gift deed executed by him in favour of his wife Yamuna saying that there were some errors in the boundaries of the property.

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Said Yamuna in turn sold the site to one Mallikarjuna G.R. under registered sale deed dated 16.10.2019. The said Mallikarjuna in turn under the registered sale deed dated 27.07.2020 sold the said site to defendant Nos.1 and 2. On the basis of said sale deeds, defendant Nos.1 and 2 obtained khata and sanctioned plan for construction on the site and

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attempted to put up construction on the suit schedule property.

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The plaintiff claims that though the acquisition in respect of the said property sold to her was quashed, Basappa and other owners of Survey No.25 received consideration, executed Declaration cum Ratification deed, defendant No.3 suppressing the material facts got up the partition deed, gift deed, khata conversion order and the sale deeds in respect of her site i.e. Site No.207. She claims that she is absolute owner in possession of the property. Hence she sought decree for permanent and mandatory injunction. In the suit she filed I.A.No.1 for temporary injunction and I.A.No.2 restraining the defendants from proceeding with construction or from changing the nature of the property.

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The defendants filed I.A.No.3 under Order VII Rule 11 of CPC seeking rejection of the plaint on the ground of bar of limitation, maintainability of the suit for not seeking declaration of title and improper valuation

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of the suit etc. They filed written statement and objections to I.A.No.1.

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The defendants contend that after quashing of the proceedings and confirmation of the same by the Hon’ble Supreme Court, the Land Acquisition Officer restored the possession to Basappa and other land owners. They disputed execution of Declaration cum Ratification deed and genuineness of the same. They disputed the possession of the plaintiff and the validity of her sale deed. They claimed that after quashing of the proceedings by the Hon’ble Supreme Court, Basappa and others continued to be the absolute owners of the property and they entered into subsequent transaction and got the property converted for nonagricultural use and were lawfully putting up the construction. They challenged the case of the plaintiff on the ground that she cannot maintain the suit without seeking declaration of her title to the property. They also contended that the suit is barred by time.

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MFA No.3829/2021

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The trial Court on hearing both side, by the impugned order rejected the application of the defendants under Order VII Rule 11 of CPC on the ground that the issue raised by them require consideration on trial. The trial Court rejected the application of the plaintiff on the ground that on quashing of the acquisition proceedings, right and title of the plaintiff and the documents relied on by her loose validity, therefore she has failed to make out primafacie case.

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Sri K.B.S.Manian, learned Counsel for the appellant/plaintiff seeks to assail the impugned order on the following grounds:

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(i) Subsequent to quashing of the acquisition proceedings, defendant No.3’s father Basappa entered into Declaration cum Ratification deed dated 02.03.2000. Relying on the very same partition deed, and using his political influence, defendant No.3 got cancelled the khata which was standing in the names of the allottees of the society.

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(ii) In W.P.No.21920/2010, it was contended that the judgment and decree in O.S.No.15571/2004 was fraudulent one. In that context it was held that if at all land owners claim that decree suffered by them in O.S.No.15571/2004 is fraudulent one, they have to approach Civil Court seeking declaration and quashed the order passed by Bruhat Bengaluru Mahanagara Palike changing the khata in the names of the land owners. The trial Court over looked the said judgments. That amounts to perversity.

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(iii) The plaintiff a retired senior citizen, having invested huge amount is suffering in the hands of the defendants due to dishonest acts of defendant No.3. Therefore balance of convenience and comparative hardship lies in her favour.

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In support of his contentions, he relies upon the following judgments:

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State of Assam vs. Barak Upatyaka D.U. Karmachari Sanstha¹

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Wander Ltd. vs. Antox India P.Ltd.²

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1 (2009) 5 SCC 694

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2 1990 (Supp) SCC 727

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MFA No.3829/2021

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Purnima Manthena and others vs. Dr.Renuka Datla and others³

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S.Kaladevi v. V.R.Somasundaram⁴

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Bondar Singh v. Nihal Singh⁵

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R.Munusamy v. G.Krishttappillai⁶

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Sunkamma v. S.Pushparaj⁷

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Dorab Cawasji warden v. Coomi Sorab Warden⁸

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The Golden Valley Educational Trust Oorgam, Kolar District vs. The Vokkaligara Sangha, Bangalore⁹

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Redland Bricks Ltd., vs. Morris and another¹⁰

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Jones vs. Securities and Exchange

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Commission¹¹

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Ram Daan v. Urban Improvement Trust¹²

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Ramji Rai v. Jagdish Mallah¹³

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Ramesh Chand Ardawatiya v. Anil Panjwani¹⁴

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Rame Gowda v. M.Varadappa Naidu¹⁵

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Suraj Lamp & Industries (P) Ltd(2) v. State of Haryana¹⁶

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3 (2015) 7 MLJ 624

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4 (2010) 5 SCC 401

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5 (2003) 4 SCC 161

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6 2014 (6) CTC 773

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7 (2018) 12 SCC 647

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8 (1990) 2 SCC 117

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9 ILR 2016 KAR 2899

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10 1970 AC 652

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11 1936 SCC online US SC 73

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12 (2014) 8 SCC 902

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13 (2007) 14 SCC 200

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14 (2003) 7 SCC 350

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15 (2004) 1 SCC 769

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16 (2012) 1 SCC 656

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Per contra, Sri H.T.Jagannatha and

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Sri R.S.Ravi, learned Counsel for the defendants seek to justify the impugned order on the following grounds:

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(i) In view of the judgment of the Supreme Court quashing the land acquisition proceedings, the plaintiff cannot rely on the said acquisition proceedings or her title based on such proceedings.

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(ii) Declaration cum Ratification deed relied upon by the plaintiff is unregistered document and that does not convey any title or possession to the plaintiff.

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(iii) The suit was apparently not maintainable. The proceedings in W.P.No.21920/2010 and connected matters relate to only change of khata and they have no bearing on the present suit or the application.

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(iv) The order of the trial Court does not suffer any perversity, capriciousness, arbitrariness and therefore this Court cannot interfere with the order of the trial Court.

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In support of his contention, he relies upon

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the following judgments:

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H.M.T. House Building Co-operative Society vs. Syed Khader and others¹⁷

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H.M.T. House Building Co-operative Society vs. M.Venkataswamappa and others¹⁸

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Anathula Sudhakar vs. P.Buchi Reddy¹⁹

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Having regard to the rival contentions, the point that arises for consideration is “whether the impugned order suffers vice of arbitrariness, perversity or capriciousness?”

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As already noted most of the facts in the case are admitted one. The defendants did not dispute that the plaintiff is the former employee of BHEL. It is not disputed that the society in the year 1984 entered into agreement with various landowners of Pattanagere village. It is admitted that the Government acquired the lands for the purpose of forming layouts for the benefit of the members of the Society. The Society formed layout and allotted sites to its members. The suit site

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17 AIR 1995 SC 2244

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18 AIR 1995 SC 2253

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19 (2008) 4 SCC 594

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bearing No.207 was carved out of Survey No.25, the land acquired for formation of layouts. The Society sold the suit site to the plaintiff under registered sale deed dated 16.11.1992 and put her in possession.

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Subsequent to the quashing of Land Acquisition proceedings by this Court and confirmation of the same by the Hon’ble Supreme Court in 1995, defendant No.3 with his heirs entered into partition deed and went on alienating the suit properties from hand to hand. He was even successful in pressurizing Bruhat Bengaluru Mahanagara Palike and got cancelled the khata standing in the names of Society and allottees.

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The trial Court rejected the injunction application on the sole ground that consequent to quashing of the land acquisition proceedings, plaintiff’s title deed, khata certificate and tax paid receipts etc relied on by her lose their legal sanctity, therefore it cannot be said that she is in lawful possession of the property.

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Based on the very judgment of the Hon’ble Supreme Court, the land owners got the khata standing in the name of the Society and the allottees cancelled. Such cancellation was challenged before this Court in W.P.No.21920/2010 and connected matters. In that case also the Society and the allottees claimed that on quashing of the acquisition proceedings, land owners and the Society entered into Declaration cum Ratification deed on 02.03.2000.

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It was contended that land owners received additional consideration by way of cash and sites formed by the Society, based on such ratification deed, some suits were filed seeking declaration of the title of the allottees. O.S.No.15571/2004 was one such suit. Reading of the judgment in W.P.No.21920/2010 (LBBMP) shows that in O.S.No.15571/2004 the very same Declaration cum Ratification deed was relied and decree was passed in favour of the allottees of the sites.

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In W.P.No.21920/2010 (LB-BMP) the very same contention that Declaration cum Ratification deed

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is unregistered document and that does not convey any right, title or interest to the allottees was raised. However, this Court held that since relying on the same Declaration cum Ratification deed, O.S.No.15571/2004 was decreed, if the land owners have any grievance against that, they should have filed suit seeking nullity of the said judgment, only after getting declaration of their title and the possession in such suit, they can seek cancellation of khata of the allottees and the society. Defendant No.3 was also party to the above said writ petitions. The said judgment relegating the parties to the Civil Court was upheld in W.A.No.2176/2013 and connected matters.

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The present suit is for permanent and mandatory injunction. In the said suit, relief of temporary injunction was sought against putting up construction or changing the nature of the property. To succeed in the application, the plaintiff had to make out prima facie case. Prima facie case means the plaintiff

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has to satisfy that there is triable issue and the suit is not vexatious.

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On quashing of the land acquisition proceedings by the Hon’ble Supreme Court, if there was no supervening circumstance, the plaintiff would have no case. But the judgments in W.P.No.21920/2010 (LB-BMP) and O.S.No.15571/2004 are the supervening circumstances. The effect of those judgments on the rights of the parties requires to be decided on a trial. Therefore, it can be said that the plaintiff’s suit is not vexatious and there is a triable issue in the suit. Till that is decided, status quo has to be maintained.

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Admittedly, the suit property was a vacant site and the defendants were trying to put up constructions. Therefore prima-facie the case of injury to the right of the plaintiff was made out. The trial Court while rejecting the application of the defendants under Order VII Rule 11 of CPC rightly held that whether the suit for bare injunction was maintainable or whether that was properly valued and time barred were mixed

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question of law and fact and require trial. The defendants have accepted the order of rejection of their application. Therefore in the considered opinion of this Court, the contention that the suit was not maintainable, so no prima facie case was made out cannot be countenanced at this stage.

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So far as balance of convenience and irreparable injury as already observed, the plaintiff is retired employee and senior citizen. Having purchased the property investing her hard earned money is lost in endless litigation. Under the circumstances, if she succeeds in the suit, by that time, if the defendants construct the building or change the nature of the property, she will be put to irreparable injury. Balance of convenience lies in her favour. Therefore this Court is of the considered opinion that the impugned order suffers vice of perversity since the same is rendered ignoring the judgment of this Court in W.P.No.21920/2010 and W.A.No.2176/2013 and connected matters.

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In the light of the discussions made above, suffice to say that the judgments relied upon by learned Counsel for the respondents cannot be justifiably applied to the facts and circumstances of the case. Therefore the appeal is allowed.

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The impugned order of the trial Court is hereby set aside. I.A.No.1 filed by the plaintiff is hereby allowed.

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The defendants are hereby restrained from proceeding with further construction on the suit property or from changing the nature of the suit schedule property till disposal of the suit.

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In view of disposal of the appeal, pending IAs stood disposed of.

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KSR

Radhamani. M. K. v. Girish. M

Case brief

What is this about?

What did the court decide?

Radhamani. M. K. v. Girish. M

Case brief

What is this about?

What did the court decide?

What the court decided

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