Quashed

Smt. Parvathamma v. Sri. Karibasaveshwara Seva Samiti (R)

Karnataka HC6 Dec 2021WP/410/2021

Case brief

AI extract

What is this about?

High Court allowed writ petition under Article 226, quashing appellate court order setting aside interim injunction. While grant of final relief was reserved for civil court, High Court held impugned appellate order a nullity due to failure to consider material circumstances. Relief is temporary injunction protection. Disposition: quashed.

What did the court decide?

Impugned order dated 21.10.2020 in M.A. No. 24/2020 set aside; Writ petition allowed.

Smt. Parvathamma Vs Sri. Karibasaveshwara Seva Samiti (R) — 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 6^TH DAY OF DECEMBER 2021

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BEFORE

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THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

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WRIT PETITION NO.410/2021 (GM-CPC)

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BETWEEN :

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SMT. PARVATHAMMA, D/O HALAPPA, HOUSE WORK, AGED ABOUT 56 YEARS, RESIDENT OF YADEHALLI VILLAGE, HOLEHONNUR HOBLI, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT.

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SMT. H.MEENAKSHAMMA, D/O HALAPPA, HOUSE WORK, AGED ABOUT 53 YEARS, RESIDENT OF YADEHALLI VILLAGE, HOLEHONNUR HOBLI, BHADRAVATHI TALUK,

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SHIVAMOGGA DISTRICT.

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... PETITIONERS

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(BY SRI.K.N.DAYALU, ADVOCATE)

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AND :

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SRI. KARIBASAVESHWARA SEVA SAMITI(R), YADEHALLI, BHADRAVATHI TALUK, REPRESENTED BY ITS PRESIDENT C.MALLESHAPPA,

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S/O CHANNABASAPPA,

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AGED ABOUT 79 YEARS, YADEHALLI, BHADRAVATHI TALUK.

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SRI. KARIBASAVESHWARA SEVA SAMITI(R), YADEHALLI, BHADRAVATHI TALUK, REPRESENTED BY ITS SECRETARY B.NANDYAPPA, S/O SHIVAPPA, S/O CHANNABASAPPA, AGED ABOUT 75 YEARS, YADEHALLI, BHADRAVATHI TALUK.

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(BY SRI. B.S.PRASAD, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN M.A.No.24/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, BHADRAVATHI AND O.S. No.161/2019 ON THE FILE OF THE CIVIL JUDGE BHADRAVATHI, ETC.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-

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O R D E R

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The petitioners, who are the plaintiffs in O.S. No.161/2019 on the file of the II Additional Civil Judge and JMFC, Bhadravati [for short, ' the civil Court '], have impugned the order dated 21.10.2020 in M.A. No.24/2020 on the file of the Additional Senior Civil Judge and JMFC, Bhadravati [for short, 'the appellate Court ']. The civil Court by its order dated 16.03.2020

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has allowed the petitioners' application (I.A. No.II) under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 [for short, 'the CPC '] for temporary injunction against the respondents from interfering with the immovable properties mentioned in the plaint schedule 'A' and 'B'. The appellate Court, by its impugned order dated 21.10.2020, has allowed the respondents' appeal and set aside the civil Court's order.

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The petitioners' case in brief is that their father, Sri.Halappa, purchased the property bearing site No.71/1, V.P. Khata No.89 of Agaradahalli Mandala Panchayat, Holehonnuru Hobli, Bhadravati Taluk, under the sale deed dated 13.01.1989 and he has transferred this larger property in two portions in favour his daughters, the petitioners, under two separate gift deeds dated 25.06.2007. The respondents, a registered society which oversees the affairs of Sree.Basavenna

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Devaru Temple and its office bearers, have insisted upon the petitioners for giving up 3 feet X 44 feet, and because they have refused, the Society’s office bearers are interfering with their construction in the suit schedule property notwithstanding the licences issued by the competent authority.

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On the other hand, the respondents' case, as pleaded in the written statement, is that the petitioners, who are the owners of the two separate properties [plaint schedule A and B properties], have obtained separate licences for distinct construction in their respective properties but they are constructing a single unit in violation of the sanctioned plans and that too without any set back. The respondents specifically assert that the petitioners' properties are bounded on the East by road and on the other three sides, by the properties of the Temple and therefore, the petitioners cannot proceed with the construction.

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The civil Court has granted interim

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injunction allowing the petitioners' application [I.A. No.II] observing that the petitioners have produced the original sale deed as also the gift deeds and the copies of the licences issued by the concerned local authority with all the revenue records, and whereas the defendants have not produced any document. Insofar as the respondents' defense that the petitioners are constructing contrary to the sanctioned plans, the civil Court has observed that if there is any violation with the plans sanctioned by the local authority, the respondents must take necessary action as permissible in law but they cannot obstruct the construction. The civil Court has accordingly considered prima facie case, balance of convenience and irreparable injury while granting injunction to the petitioners.

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However, the appellate Court, on a

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comparative reading of the principal sale deed dated 13.01.1989 and the later gift deeds dated 25.06.2007 in favour of the petitioners, has observed that according to the sale deed dated 13.01.1989 the property measures East to West: 24 feet and North to South: 38 feet but the combined measurement of the properties under the two gift deeds dated 25.06.2007 is East to West 38 feet and North to South 24 feet. The appellate Court has concluded that the civil Court has not considered this circumstance and therefore, it could not have opined that the petitioners have succeeded in establishing a case for grant of temporary injunction.

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Sri.Dayalu K.N., the learned counsel for the petitioners, submits that the respondents are categorical that their grievance with the petitioners is because they are constructing a single unit in two sites though the sanction is for two units and the

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construction is without leaving any set back. The merits of the rival claims must necessarily be examined in the light of such defence for deciding the merits of the petitioners' application. But, the appellate Court has considered the respondents’ grievance tangentially. Sri.B.S.Prasad, the learned counsel for the first and second respondents, submits that if the mismatch in the measurement as found in the sale deed dated 13.01.1989 and the later gift deeds dated 25.06.2007 is irrefutable, this Court cannot opine that there is any material irregularity in the impugned order. He also emphasizes that this change in the measurement makes it obvious that the petitioners have not approached this Court with clean hands and they have failed to establish their case.

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It is obvious from the rival submissions that

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the respondents do not contest the suit asserting that the petitioners' claim an extent that is greater than what

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is originally purchased by their father, Sri.Halappa, under the sale deed dated 13.01.1989. The respondents’ specific case is that the petitioners, who are the owners of two portions of the larger property and have obtained separate licences for construction of separate units in these two portions, are constructing one unit without any set back. The obvious difference in the interchange of the measurement of the property as found in the sale deed dated 13.01.1989 and the later gift deeds dated 25.06.2007 will have to be necessarily examined in the context of the respondents' aforesaid defense and the undisputed fact that the concerned local authority have issued building licence to the petitioners for construction in the properties totally measuring East to West: 38 feet and North to South: 24 feet as per the petitioners' gift deeds.

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It also cannot be gainsaid that if there is any deviation from the sanctioned plan, it would always be

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open to the respondents to approach the competent authority and that cannot be a reason for them, given the circumstances of the case as discussed, to obstruct the construction as permitted by the competent authority. Further, it is undisputed that the respondents own properties on three sides of the subject properties. These are material circumstances, and the appellate Court should have considered these circumstances while assessing the merits of the civil Court's decision. This Court is persuaded to interfere with the appellate Court's order because it has not considered the material circumstances. Hence, the following:

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ORDER

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The petition is allowed. The impugned order dated 21.10.2020 passed in M.A. No.24/2020 by the appellate Court stands quashed. However, it is observed that the

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disposal of this writ petition as aforesaid shall not prejudice the respondents' rights to prosecute the remedy available to them in law if there is any construction contrary to the building plan/licence sanctioned by the competent authority, and nor can this order be construed as permitting the petitioners to put up any construction contrary to the sanctioned plan.

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Sd/JUDGE

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RK/Ct: SN

Smt. Parvathamma v. Sri. Karibasaveshwara Seva Samiti (R)

Case brief

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Smt. Parvathamma v. Sri. Karibasaveshwara Seva Samiti (R)

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