Partly allowed

M/S Century Shelters v. Smt v Sujatha

Karnataka HC20 Jul 2022MFA/3052/2022

Case brief

AI extract

What is this about?

In a miscellaneous first appeal against an injunction order, the High Court set aside the stay to protect the appellants' completed multi-storied residential complex on 3 acres, restricting the injunction to the remaining property not occupied by the construction.

What did the court decide?

The impugned order is set aside only to protect the completed construction within the compound wall of the appellants, restricting any injunction to the remaining unconstructed portion of the property

M/S Century Shelters Vs Smt v Sujatha — 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 20^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.3052/2022 (CPC)

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BETWEEN:

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M/S CENTURY SHELTERS A PARTNERSHIP FIRM NO 10/1, LASKHMINARAYANA COMPLEX PALACE ROAD, BANGLAORE 560052 REP. BY ITS PARTNER SRI P ASWIN PAI NOW CONVERTED TO A PRIVATE LTD. COMPANY UNDER THE COMAPNIES ACT AND IS NAMED AS CENTURY SHELTERS DEVELOPMENT PVT LTD AND IS REP BY ITS AUTHORISED REPRESENTATIVE MR S CHETAN KUMAR.

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MR. M S MAHADEVAIAH S/O M SHIVANNA AGED 55 YEARS R/A NO 65 AND 66 6^TH CROSS, BHUVANESHWARI NAGAR DASARAHALLI, HEBBAL BANGALORE - 560 024. ... APPELLANTS (BY SRI.CHANDAN K, ADVOCATE)

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AND:

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SMT V SUJATHA W/O B SETHUMANI AGED 60 YEARS R/AT NO 310 5^TH CROSS, TATANAGAR

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BANGALORE 560 092.

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MR.YOGEESHWAR VARMA S/O D M RAMA RAJU AGED 30 YEARS R/A NO 65 AND 66 6^TH CROSS BHUVANESHARI NAGR DASARAHALLI HEBBAL BANGALORE 560024.

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M/S CITRUS VENTURES PROJECTS LLP A LIMITD LIABILITY PARTNESHIP HAVING ITS REGISTERED OFFICE AT D 4, 3^RD FLOOR, NO 18, KAPILA ENCLAVE H B SAMAJA ROAD BANGALORE 560004 REP BY ITS PARTNER MR YOGEESHWAR VARMA D.

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MR MANJUANTH S/O B KRISHNAPPAA AGED 48 YEARS R/A AMRUTHALLI VILALGE YELAHANKA HOBLI BANGALORE 560064.

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... RESPONDENTS (BY SRI.H.S. RUKKOJI RAO, ADVOCATE)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 01.02.2022 PASSED ON I.A. NO.1 IN O.S.NO. 950/2021 ON THE FILE OF THE XXVII ADDITIONAL CITY CIVIL JUDGE, BENGALURU CITY, ALLOWING I.A. NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 OF THE CPC.

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

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JUDGMENT

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The appellants are the fourth and the fifth defendants in the suit in O.S. No.950/2021 on the file of the XXVII Additional City Civil Judge, Bengaluru (for short, 'the civil Court’ ). The appellants have impugned the civil Court’s order dated 01.02.2022 restraining the appellants and the other defendants as well from interfering with the respondent - plaintiff’s possession of the suit schedule property viz ., a property described as bearing Municipal Khata No.679/116/3/11 (Site No.11) formed in Sy. Nos.107/3, 108/1 and 116/3 (Khata No.999) of Amruthahalli Village, Yelahanka Hobli, Bangalore North Taluk, now within the limits of Yelahanka range of Bruhat Bengaluru Mahanagara Palike ( the subject property ).

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The learned counsel for the appellants and the first respondent [the plaintiff] have been permitted to file certain additional documents, which includes sanctioned plans, photographs, endorsements issued by BBMP and the sale deed executed on 24.03.2021. For convenience, the parties are referred to as they are arrayed before the civil Court.

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The plaintiff asserts that the subject property is part of a larger extent of land measuring 5 acres 26 guntas in four different survey numbers of Amruthahalli Village, Yelahanka Hobli, Bangalore North Taluk. The first defendant, her vendor, has purchased 4 acres 12½ guntas out of this total extent under the sale deed dated 16.07.2002 from Sri Doddamuniyappa and others, and has later got this extent converted from agricultural to residential purposes on 28.09.2002. The first defendant has sold the subject property in her favour on 05.12.2002. She has paid betterment charges for the

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subject property to the then local authority i.e., Byatarayanapura City Municipal Council, and with the subject property coming within the fold of the present local authority viz ., BBMP, the khata for the subject property is also mutated in her favour with this authority and she has paid up-to-date taxes.

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The plaintiff, as regards the alleged interference

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with her possession of the subject property, asserts that certain persons claiming under the defendants called all the owners of the sites formed in the larger extent of land for a meeting. These persons informed the site owners that a ‘ Tech Park’ is planned in the larger land in the aforesaid survey numbers of Amruthahalli Village, Yelahanka Hobli, and demanded the site owners to transfer the revenue sites. Some of the site owners have transferred the respective sites. The plaintiff, who is a senior citizen, who has retired from the office of the Accountant General, Government of India and who has

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invested all her lifetime savings in the purchase of the subject property, has not sold the same, and if there is no injunction, her rights would be severely prejudiced.

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As against these pleadings, the fourth defendant has contended that late Sanjeevappa and his family members owned 5 acres 24 guntas in four survey numbers of Amruthahalli Village, Yelahanka Hobli, Bangalore North Taluk viz., Sy No. 106/3 [measuring 12 guntas], Sy No.108/1 [measuring 3 acres 20 guntas], Sy No. 107/3 [measuring 1 acre 4 guntas] and Sy No. 116/3 [measuring 28 guntas]. They executed and registered a Sale Agreement and General Power of Attorney dated 17.08.1989 in favour of Sri Raghunath, who has executed the sale deed for this total extent in favour of Sri M S Mahadevaiah [the fifth defendant] on 15.07.2002.

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The fourth defendant further contends that Sri

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M S Mahadevaiah has commenced a suit in

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O.S.No.15998/2003 against Sri Doddamuniyappa and 21 others including the first defendant. This suit has ended in a compromise with the compromise petition being filed on 07.04.2007. In this compromise, the first defendant [the plaintiff's vendor] has also accepted that a fresh sale deed would be executed in favour of the fourth/fifth defendant for an extent of 3 acres in the larger extent measuring 5 acres and 20 guntas. This extent of 3 acres is demarcated in the enclosed sketch to the decree, and this 3 acres is in Sy.No.107/3 [measuring 36½ guntas], in Sy No. 116/3 [measuring 22 guntas] and in Sy No.108/1 [measuring 1 acre 21½ guntas] of Amruthahalli Village, Yelahanka Hobli, Bangalore North Taluk.

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The fourth defendant furthermore contends that in performance of the assurance under the aforesaid compromise decree, both the first defendant [the plaintiff's vendor] and Sri. M S Mahadevaiah [the

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fifth defendant] have executed in its favour, the sale deed dated 13.02.2007 for the said extent of 3 acres. After this sale deed, the competent authority has sanctioned Building plan and license on 14.03.2013 for construction of a multi-storied residential complex not only in 3 acres but in other adjoining lands owned by the fourth respondent. The fourth defendant has almost completed the construction of the multistoried residential building.

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The civil Court has examined the merits of

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the plaintiff’s application for injunction in light of these rival claims. The civil Court has opined that Sri. M S Mahadevaiah [the fifth defendant and under whom the fourth defendant asserts title to the aforesaid extent of 3 acres] could not have been nominated by a certain Sri Satish Pai. It appears that the civil Court has so opined because of the written statement averment that the sale agreement and the power of attorney dated 17.08.1989

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are executed in favour of Sri S.Raghunath authorizing him to sell the larger extent of land only in favour of Sri Satish Pai.

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The civil Court has also considered a CD filed by the plaintiff after the conclusion of the hearing on the application for temporary injunction opining that the fourth and fifth defendant have tried to take advantage of the fact that the order of status quo granted earlier was not extended for some time and there is an effort to take possession of the subject property.

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Sri K. Chandan, the learned counsel for the appellants submits that the civil Court has completely misconstrued the defense in opining that the original transaction was in favour of Sri Satish Pai and therefore, the fifth defendant could not have derived any title to the property. The civil Court has overlooked the material circumstances such as the execution of sale

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deed dated 15.07.2002 in favour of Sri. M S Mahadevaiah [the fifth defendant] and the culmination of the subsequent proceedings in O.S.No.15998/2003 with the execution of the sale deed in favour of the fourth defendant on 13.02.2007 by both the first defendant and Sri. M S Mahadevaiah [the fifth defendant]. The learned counsel also submits that the civil Court has failed to notice that the first defendant [from whom the plaintiff claims title to the subject property] is a party to the suit as also the original owners [Sri. Doddamuniyappa and others], from whom the plaintiff traces title through the first defendant, are parties to the suit.

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Sri K. Chandan argues that the dispute in O.S.No.15998/2003 was for a larger extent of land measuring 5 acres 24 guntas in Sy.Nos.106/3, 108/1, 107/3 and 116/3 of Amruthahalli Village, Yelahanka Hobli, Bangalore North Taluq between the two rival

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claimants i.e., Sri. Doddamuniyappa and others, who have transferred a portion of this extent in favour of the first defendant, and the fifth defendant, who has purchased this extent through the aforesaid agent of the power of attorney from late Sanjeevappa and sons. However, the rival claims are settled with both the first defendant and the fifth defendant transferring 3 acres in Sy. No.107/3, 116/3 and 108/1 of Amruthahalli Village, Yelahanka Hobli, Bangalore in favour of the fourth defendant. The fourth defendant has constructed structures, and lands in Sy.Nos.107/3, 116/3, 108/1 measuring 3 acres comprises of completed residential building with all amenities such as access, landscape and others.

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Sri K Chandan lastly submits that the impugned order of injunction restraining the fourth and fifth defendant without considering the aforesaid circumstances has put them, and every person claiming

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under them, to irreparable loss and injury. He contends that the civil Court could not have referred to a CD furnished by the plaintiff without an opportunity to the fourth and fifth defendant to rebut the same, and the civil Court in considering these circumstances, has considered extraneous circumstances.

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Per contra , Sri H.S. Rukkoji Rao, the learned counsel for the plaintiff, submits relying upon additional set of documents now filed in this present appeal, that the BBMP has responded to the request for details of the khata issued for the lands in Sy.No.108/1, 116/3, 106/3, 106/2 of Amrutahalli Village, Yelahanka Hobli, Bangalore stating that the khatas have been registered for 43 sites, enclosing a list of khatedars and a sketch of the location of the sites for which the khatas are issued. He argues that this document conclusively establishes that the lands in these survey numbers are not utilised for construction as now stated.

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Sri H.S. Rukkoji Rao also submits that the third party rights, including the plaintiff’s rights insofar as the subject property, have been created. If the impugned order is interfered with, that would be utilised for dispossessing the plaintiff. The CD, which is referred to by the civil Court, bears testimony to this effort, and neither the fourth nor fifth defendants can have reasonable objection to the civil Court referring to the same as the copies thereof have been furnished to the learned counsel and he was also heard on its contents. The learned counsel also relies upon the sale deed dated 24.3.2021 to contend that the first defendant [the plaintiff's vendor] is in the habit of creating multiple transactions. He argues that the sale deed dated 24.3.2021 is executed for an extent of 1 acre 6½ guntas in Sy.No.108/1 despite the fact that this land is also converted into residential sites.

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Sri H.S. Rukkoji Rao, meeting the

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submissions on behalf of the appellants that the plaintiff is misusing the impugned order to obstruct the completed construction, submits that the subject property is not part of any construction; however, there will be an effort to include it within the area claimed by the contesting defendants if the injunction granted by the civil Court is dissolved or set-aside.

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The rival submissions are considered in the light of the material on record which includes the photographs. These photographs are also read in conjunction with the plan. The photographs and the plan are as follows:

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A conjoint and a closer reading of these photographs and the plan¹ prima facie, and the sketch annexed to the compromise decree in OS No. 15998/2003, prima facie demonstrate that the extent of three acres in Sy No. 107/3, 116/3, and 108/1 of Amruthahalli Village, Yelahanka Hobli is utilized for construction of a multi storied building. This Court must consider the contesting defendants - appellants’ specific case that the interim order extends to the extent of land that is utilised by the fourth defendant for construction of a multi-storied residential complex.

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1 The lands in these survey numbers are mentioned in the top portion of the plan.

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This must be a relevant circumstance to

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assess the consequence of granting an order of injunction, and the consequence undoubtedly is that the rights of those who could have acquired rights to the constructed area in this complex through the fourth defendant [the first appellant] could be seriously prejudiced. If the rights have accrued with the construction being near completion, the same cannot now be prejudiced by the grant of an interim order without even hearing them.

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Further, the contesting defendants' claim of title to the land measuring three acres in the aforesaid survey numbers of Amruthahalli Village, Yelahanka Hobli should not only be examined in the light of the sale agreement and the power of attorney dated 17.08.1989, but also in the light of the compromise

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decree and the subsequent sale deed dated 13.02.2007.

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The first defendant, under whom the plaintiff claims title, is a party to both the compromise petition and the sale deed dated 13.02.2007 under which the fourth defendant has purchased the three acres. The contesting defendants are successful in prima facie demonstrating that these three acres are utilized for construction.

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Significantly, the plaintiff claims that the subject property is part of the larger extent of 5 acres 2 guntas whilst the contesting defendants are categorical that their right [and the right of every person claiming under them] is confined only to 3 acres which is utilized by them for construction. The culmination of the dispute amongst the undisputed owners resulting in the sale deed dated 13.02.2007 and the fact that the contesting defendants claim only an extent of 3 acres out of 5 acres 24 guntas, demonstrates that the plaintiff

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has not established either prima facie case or balance of convenience or irreparable injury. In that event her application for injunction should have been refused.

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This Court therefore, must interfere with the impugned order but with the observation that the impugned order is set aside to protect the construction that is completed within the compound wall and not otherwise. The appeal stands disposed of accordingly.

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SD/JUDGE

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M/S Century Shelters v. Smt v Sujatha

Case brief

What is this about?

What did the court decide?

M/S Century Shelters v. Smt v Sujatha

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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