Allowed

Sri N Ramesh v. Sri G G Raveesha

Karnataka HC5 Jan 2021MFA/5228/2020

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed this appeal against an order granting temporary injunction restraining the appellants from alienating suit property. The court held that since the transfer via power of attorney stood valid and the respondent's challenge was delayed, no injunction was necessary.

What did the court decide?

Order passed by the trial court on IA 1/2020 restraining appellants from alienating the suit property under Order XXXIX Rules 1 and 2 CPC is set aside.

Sri N Ramesh Vs Sri G G Raveesha — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF JANUARY 2021

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BEFORE

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THE HON’BLE MR. JUSTICE NATARAJ RANGASWAMY

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MISCELLANEOUS FIRST APPEAL NO.5228 OF 2020 (CPC)

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BETWEEN:

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SRI.N.RAMESH S/O N.NARAYANADAS AGED ABOUT 68 YEARS RESIDING AT NO.33 11^TH MAIN, MALLESHWARAM BENGALURU – 560 003.

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M/S. SAMMY’S DREAMLAND CO.PVT.LTD., A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956 HAVING ITS OFFICE AT NO.9, 2^ND FLOOR, BEL-AIR DRIVE MEKHRI CIRCLE, BELLARY ROAD, R.T.NAGAR, BENGALURU – 560 032, REP.BY ITS DIRECTOR MR.N.RAMESH.

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... APPELLANTS

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[ [BY SRI. JOSEPH ANTHONY, ADVOCATE]

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AND:

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SRI.G.G.RAVEESHA S/O LATE G.C.GANGADHARIAH AGED ABOUT 33 YEARS RESIDING AT HOSAHALLI VILLAGE HUNASAMARANAHALLI POST JALA HOBLI, BENGALURU NORTH TALUK

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… RESPONDENT

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[BY SRI.P.KARUNAKAR, ADVOCATE FOR SRI. VIGNESHWARA V., ADVOCATE FOR C/R]

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 02.11.2020 PASSED ON I.A.NO.1 AND 2 IN O.S.NO.691/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C., DEVANAHALLI, ALLOWING THE I.A.NO.1 FILED UNDER ORDER 39, RULE 1 AND 2 READ WITH SECTION 151 OF CPC AND PARTLY ALLOWING THE I.A.NO2 FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF CPC.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT THROUGH VIDEO CONFERENCE DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal arises out of an order dated 02.11.2020 passed by the Senior Civil Judge and JMFC, Devanahalli in O.S.No.691/2020 by which an application filed by the respondent No. 1 herein for an order of temporary injunction restraining the appellant from alienating the suit schedule property was considered favourably.

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The facts which are evident from the plaint

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and the documents placed on record are that the suit property bearing Survey No. 137 of Hosahalli village, Jala Hobli, Bangalore North Taluk measuring 1 acre 27 guntas was owned and possessed by Smt. Doddavenkatamma. The said Smt. Doddavenkatamma and her children are stated to have executed a sale agreement dated 01.07.1997 in favour of Maya’s Wonder World Pvt. Limited and also executed a power of Attorney in favour of the appellant No.1 herein on 01.07.1997 which was duly registered. Consequent there to, the said Smt. Doddavenkatamma along with her children represented by their power of attorney, sold aforesaid land in favour of the appellant No. 2 herein in terms of two separate sale deeds both dated 18.11.1998 and another sale deed dated 07.01.1999.

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The land in question was converted from agricultural to residential use and the conversion fine was paid on 13.10.1998, consequent to which an

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Official Memorandum dated 25.11.1998 was issued converting the land in question from agricultural to non-agricultural/residential use.

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The said Doddavenkatamma instituted O.S.No.911/2012 challenging the validity of the aforesaid three sale deeds on the ground that she had not executed any power of attorney in favour of the appellant No.1 herein. The said Doddavenkatamma died on 11.01.2017 leaving behind her children who were impleaded in the said suit. Later, the children of Doddavenkatamma executed a Deed of Confirmation dated 17.02.2017 in favour of the appellant No. 2 herein whereby they confirmed the validity of the three sale deeds dated 18.11.1998 and 07.01.1999. The suit filed in O.S.No. 911/2012 was dismissed as withdrawn on 10.03.2017.

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Long thereafter, the respondent No.1

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claiming to be the legatee of Smt. Doddavenkatamma in

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terms of a Will dated 02.03.2013 filed a suit for declaration and injunction in respect of the very same land The said suit was numbered as O.S. No. 691/2020 in which the respondent No. 1 filed two applications.

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IA 1/2020 was filed for temporary injunction

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to restrain the appellants from alienating the suit property while IA 2/2020 was filed to restrain the appellants from interfering or dispossessing the possession of the respondent No. 1 from the suit schedule property.

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The trial Court allowed the applications

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holding that the Will set up by the respondent No. 1 had to be proved in accordance with the provisions of Indian Evidence Act, 1872 and as the suit was for declaratory reliefs, in order to avoid multiplicity of proceedings, it considered appropriate to restrain the appellants herein from alienating the suit schedule property in favour of any third parties.

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8. However in so far as IA 2/2020 is concerned,

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the trial Court felt that status-quo of the suit property had to be maintained and therefore directed the parties not to change the nature of the suit property and to maintain status-quo. The appellants are aggrieved by this order and have filed this appeal. During the pendency of this appeal, the appellants filed a memo dated 05.01.2021 restraining this appeal in respect of the order passed by the Trial Court on IA.1/2020 in O.S.No.691/2020.

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It is evident from the records that there was

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a power of Attorney dated 01.07.1997 executed by not only Doddavenkatamma but also her children and the said power of Attorney was duly registered and therefore has a presumptive value under Section 85 of the Indian Evidence Act. Following the said power of Attorney, the land in question has been transferred by the appellant No.1 in favour of the appellant No.2 by three separate

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sale deeds dated 18.11.1998 and 07.01.1999. These

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sale deeds have stood the test of time till the year 2012 when Doddavenkatamma chose to challenge the sale deeds on the ground that the sale deeds were executed by a person who was not authorized.

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After the death of Doddavenkatamma, her legal representatives have ratified the sale deed in favour of the appellant No.2 and have withdrawn the suit in O.S.No.911/2012. Therefore as regard Doddavenkatamma and her legal representatives, the sale deeds dated 18.11.1998 and 07.01.1999 are held to be valid.

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The respondent No. 1 now claims to be the legatee of Smt. Doddavenkatamma in terms of a Will dated 02.03.2013. It is stated that Doddavenkatamma died on 11.01.2017 and even after three years, the respondent No. 1 did not choose to challenge the sale deed but filed a suit on 10.09.2020.

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The aforesaid facts would indicate that the

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balance of convenience is more in favour of the appellants herein and the comparative hardship that may be caused in granting injunction is more in favour of the appellants than in favour of the respondents herein. At any rate, any alienation that may be made by the appellants during the pendency of the suit would always be subject to the outcome of the suit. Consequently, there was no necessity to pass an order

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of temporary injunction from alienating the suit schedule property. In that view of the matter, the order passed by the trial Court in so far as IA 1/2020 under Order XXXIX Rule 1 and 2 of CPC is liable to be set aside. Accordingly, the order passed on IA 1/2020 in O.S.No.691/2020 is set aside by allowing this appeal.

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Sd/JUDGE

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mbb

Sri N Ramesh v. Sri G G Raveesha

Case brief

What is this about?

What did the court decide?

Sri N Ramesh v. Sri G G Raveesha

Case brief

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What did the court decide?

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