Partly allowed

Smt Tejaswini S D v. P Premakumar

Karnataka HC6 Jul 2022MFA/2959/2022

Case brief

AI extract

What is this about?

In original suits involving cross claims for permanent injunction and declaration of title over the same land, this Court allowed appeals against civil court orders granting temporary injunction to one party. Relying on rival descriptions and rectification deeds, the High Court directed both parties to maintain status quo without changing the property's nature until final adjudication.

What did the court decide?

Both the appellant and the first respondent are directed to maintain status quo without changing the nature of the subject property until final adjudication in the suits.

Smt Tejaswini S D Vs P Premakumar — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 06^TH DAY OF JULY, 2022

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BEFORE

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

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MISCELLANEOUS FIRST APPEAL NO.2967/2022(CPC)

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C/W

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MISCELLANEOUS FIRST APPEAL NO.2959/2022(CPC)

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IN MFA NO.2967/2022:

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BETWEEN:

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SMT. TEJASWIMINI.S.D AGED ABOUT 38 YEARS S/O R.C. MANOHAR RESIDING AT NO.308 14^TH CROSS, 5^TH CROSS RMC 2^ND STAGE DOLORES COLONY BENGALURU-560 094

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AND ALSO

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NO.2488, D, GROUP LAYOUT GIDADAKONENAHALLI YESHWANTHAPURA HOBLI BENGALURU NORTH TALUK BENGALURU-560 091

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... APPELLANT

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(BY SRI. HARSHA KUMAR GOWDA H.R., ADVOCATE)

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AND:

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P. PREMAKUMAR AGED ABOUT 47 YEARS

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S/O PRABHU ARADHYA REPRESENTED BY ITS GPA HOLDER VISWANATH AGED ABOUT 67 YEARS S/O LATE N. SIDDAIAH RESIDENT OF BINDU AMULYA APARTMENT ANJANA NAGARA BENGALURU-560 091

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VISWANATH AGED ABOUT 67 YEARS S/O LATE N. SIDDAIAH RESIDENT OF BINDU AMULYA APARTMENT ANJANA NAGARA BENGALURU-560 091

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... RESPONDENTS (BY SRI. K. MANOHARA CHARI, ADVOCATE)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43, RULE 1(r) OF CPC AGAINST THE ORDER DATED:18.02.2022 PASSED ON IA NO.1 AND 2 IN O.S.NO.2508/2020 ON THE FILE OF THE LX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-61), DISMISSING IA NO.1 FILED U/O.39 RULE 1 AND 2 OF CPC & ALLOWING IA NO.2 FILED U/O.39 RULE 4 R/W SEC.151 OF CPC AND ETC.

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IN MFA NO.2959/2022:

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BETWEEN:

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SMT. TEJASWINI.S.D AGED ABOUT 38 YEARS S/O R.C. MANOHAR RESIDING AT NO.308 14^TH CROSS, 5^TH CROSS RMC 2^ND STAGE DOLORES COLONY BENGALURU-560 094

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AND ALSO

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NO.2488, D, GROUP LAYOUT GIDADAKONENAHALLI

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YESHWANTHAPURA HOBLI BENGALURU NORTH TALUK BENGALURU-560 091

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... APPELLANT

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(BY SRI. HARSHA KUMAR GOWDA H.R., ADVOCATE)

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AND:

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P. PREMAKUMAR AGED ABOUT 48 YEARS S/O PRABHU ARADHYA REPRESENTED BY ITS GPA HOLDER N.S. VISWANATH AGED ABOUT 73 YEARS S/O LATE N. SIDDAIAH RESIDENT OF NO.536, 5^TH FLOOR BINDU AMULYA APARTMENT ANJANA NAGARA BENGALURU-560 091 AND ALSO AVAILABLE AT NO.2481, SURVEY NO.4/5 GIDADAKONENAHALLI D GROUP LAYOUT BENGALURU-560 091

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THE KARNATAKA STATE 'D' GROUP EMPLOYEES CENTRAL ASSOCIATION REP. BY ITS PRESIDENT MULTISTORED BUILDING DR. AMBEDKAR VEEDHI BENGALURU-560 001

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... RESPONDENTS (BY SRI. K. MANOHARA CHARI, ADVOCATE FOR R-1)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43, RULE 1(r) OF CPC AGAINST THE ORDER DATED:28.02.2022 PASSED ON IA NO.1 IN O.S.NO.3569/2020 ON THE FILE OF THE LX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-61), ALLOWING THE IA NO.1 FILED U/O.39 RULE 1 AND 2 R/W SEC.151 OF CPC AND ETC.

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THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The parties to the proceedings have commenced cross suits for permanent injunction and declaration of title claiming the same parcels of lands but describing them differently. The appellant’s suit in O.S.No.2508/2020 is for permanent injunction and the first respondent’s suit in O.S.No.3569/2020 is for declaration. These suits are pending consideration before the same Court viz ., LX Additional City Civil and Sessions Judge, Bengaluru (for short, ‘the civil Court ’). The civil Court by separate but even dated impugned orders has rejected the appellant’s application in his suit for temporary injunction while allowing the first respondent’s application for temporary injunction in his suit restraining the appellant from interfering with the first respondent’s possession of the subject property. As

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such, the appellant has filed these appeals impugning these two orders.

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The appellant asserts title and possession of the subject property identifying it as bearing residential site No.2488 in Sy.No.3/3 and part of the layout developed by the Karnataka State ‘D’ Group Employees Central Association (Regd.), which is hereafter referred to as ‘ the Association’ , in Gidadhakonenahalli village, YeshwanathpuraHobli, Benagluru North Taluk, Bengaluru. The appellant contends that this property measures East to West 40 feet and North to South 30 feet. On the other hand, the first respondent asserts that he is the owner of site bearing No.2481 in the layout formed by the Association in different survey numbers, including the Sy.No.3/3 of Gidadhakonenahalli village, Yeshwanathpura Hobli, Benagluru North Taluk.

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The appellant claims that her grandfather,

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Sri C.G.Siddaiah @ Guruve Gowda, is allotted the aforesaid property by the Association and later on, the sale deed dated 1.7.2004 is executed in his favour. The appellant’s grandfather has bequeathed this property in her favour under his last Will and Testament dated 25.11.2014, which is registered in No.SHR-300056/2014-15 with the Senior Sub-Registrar, Jayanagar (Shanthinagar), Bengaluru. The revenue records are mutated in her favour and she has obtained necessary approval from the authorities such as BESCOM to avail services.

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The first respondent contends that the Association allotted the subject property in favour of his vendor and it has executed Sale Deed on 22.6.2004. The sale deed dated 22.6.2004 is rectified on two occasions i.e., on 18.8.2010 and 29.8.2011 and

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thereafter, he has purchased the property under the sale deed dated 14.12.2011.

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The appellant contends that she has constructed a temporary accommodation in a part of the subject property while the first respondent contends that after the appellant was granted ex parte interim order in her suit in O.S.No.2508/2020, she has forcibly entered possession of the subject property and acting under the shelter of such ex parte interim order, has put up construction. Otherwise, he is in possession of the subject property. The rival pleadings for temporary injunction are in line with the aforesaid rival contentions.

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The civil Court has, by the two separate impugned orders, rejected the appellant’s application and allowed the first respondent’s application (in the corresponding suits) restraining the appellant primarily referring to the registration of FIR in Crime No.42/2020

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for the offences punishable under Section 447 read with 34 of IPC, and pending trial in CC No.8068/2020 on the file of the V Additional CMM Court, Bengaluru against the appellant on the first information filed by the first respondent¹ . The civil Court has also placed reliance on the encumbrance certificate relied upon by the first respondent to arrive at a prima facie conclusion on the merits of the rival applications.

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Sri Harish Kumar Gowda H.R., the learned

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counsel for the appellant, argues in support of the appeals and against the grant of injunction contending that the Association has executed a sale deed for the subject property in favour of the appellant’s grandfather and this sale deed is consistent without any change. The sale deed executed in favour of the first respondent’s vendor is altered twice by rectification deeds. At the first instance, measurement and the boundaries are rectified

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1. It is stated that the proceedings are stayed by this Court in the petition filed by the appellant.

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and at the second instance, the survey number and conversion order are changed. Contrary to the initial sale deed relied upon by the first respondent, the property is described as bounded on the East by road, West by Site No.2300, North by property No.21 and South by Site No.2487/A to correspond to his property. The second rectification is to indicate that the property conveyed in favour of the first respondent’s vendor is part of Sy.No.3/3 and not Sy.No.4/5 and to indicate the corresponding conversion order.

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Sri. Harsha Kumar Gowda H.R. contends that there is a serious question of identity of the property, which will have to be decided after trial, and the civil Court could not have resolved such question relying upon the encumbrance certificate and granted injunction in favour of the first respondent that would enable the respondent to change the nature of the subject property.

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Per contra , Sri Manoharachari K., the learned counsel for the first respondent, without disputing the corrections in the sale deed executed in favour of the first respondent’s vendor, submits that the appellant relies upon the revenue records which has come about just prior to the suit. The first respondent, who has purchased the property on 4.12.2011 with definite measurement and boundaries, has constructed compound wall on three sides as there was an existing compound wall on one side and the appellant has taken forcible possession of the subject property acting under the shelter of ex parte interim order granted.

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Sri Manoharachari K also submits that the appellant has failed to establish prima facie possession and the civil Court’s reasoning, in the facts and circumstances of the case, would be unexceptional. In addition, the learned counsel submits that the first respondent acting in time to protect his possession of

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the subject property from the neighboring owners’ attempting to encroach portion of the subject property has commenced a suit in O.S.No.6760/2018. He canvasses that the civil Court has considered all the material circumstances and hence, there cannot be interference with the impugned order.

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In the facts and circumstances of the case, and because of the grounds urged, the question for consideration is:

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Whether the civil Court has erred in exercising its jurisdiction in restraining the appellant from interfering with the first respondent’s possession of the subject property.

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This question is formulated because of the settled law that this Court will not interfere with the original Court’s order only because discretion is exercised in a particular manner and this Court could, in similar circumstances, exercise discretion in another manner. It would be

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incumbent upon the appellant to demonstrate that the civil Court, in restraining her from interfering with the possession of the subject property, has acted arbitrarily overlooking the material circumstances.

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It is obvious from the rival claims, as set forth in the cross suit, that the appellant and the first respondent claim stake to the same subject property but describing them differently and they claim title under the very same vendor viz ., the Association. The appellant’s suit in OS No. 2508/2020 is for permanent injunction and the first respondent’s suit in O.S.No.3569/2020 is for declaration of title. The question of identity of the subject property, as claimed by the appellant and the first respondent, given the rival claims, will have to be resolved after trial and it cannot be, at this stage, opined that either the appellant or the first respondent has established the identity of the subject property as claimed by them.

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One of the crucial facts for consideration, even at this stage would be that the Association has executed rectification deeds in the year 2010 and 2011 altering the description of the subject property conveyed in favour of the first respondent’s vendor after execution of the sale deed with similar boundaries in favour of the appellant’s grandfather. The civil Court has not considered this crucial factor.

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Further, it is not disputed that the subject property comprises of a temporary construction. The appellant contends that this construction is put up by her. The first respondent admits that this construction is put up by the appellant but asserts that the appellant has put up such construction after the commencement of the suit and on the strength of the interim order of injunction granted. But what emerges at this stage, when the parties are yet to go for trial, is that the

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construction is just before the commencement of the suit. Therefore, the claim for possession based on such construction could be called furtive, and if that be so, this Court is of the considered view that the balance of convenience and irreparable injury will have to be balanced between the appellant and the first respondent by directing both to maintain status-quo without changing the nature of the subject property during the pendency of the trial.

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The civil Court, in overlooking not only the circumstances at first mentioned but also these circumstances, in this Court’s considered view, has erred in exercising its jurisdiction and therefore, the question for consideration is answered in favour of the appellant. The appeals stand disposed of directing both the appellant and the first respondent, and every person claiming under/through them to maintain status-quo

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without changing the nature of the subject property until the final adjudication in the suits.

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SD/JUDGE

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SA Ct:sr

Smt Tejaswini S D v. P Premakumar

Case brief

What is this about?

What did the court decide?

Smt Tejaswini S D v. P Premakumar

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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