Allowed

Smt Laxmi @ Lakshmi v. Sri a Ramaiah

Karnataka HC14 Dec 2022MFA/4254/2022

Case brief

AI extract

What is this about?

The High Court allowed the appeal and set aside a single judge order granting a temporary injunction. The larger bench held the lower court's order was perverse for relying on a decree against the state and ignoring the appellant's title documents, noting the plaintiff lacked proof that the disputed site lay within converted land.

What did the court decide?

The impugned order allowing temporary injunction under Order XXXIX Rules 1 and 2 of CPC dated 20.04.2022 was set aside.

Smt Laxmi @ Lakshmi Vs Sri a Ramaiah — Property and Title | Karnataka HC (2022)

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MFA No. 4254 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14^TH DAY OF DECEMBER, 2022 BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI MISCELLANEOUS FIRST APPEAL NO. 4254 OF 2022 (CPC)

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BETWEEN:

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SMT. LAXMI @ LAKSHMI, W/O SRI. MAHESH G., AGED ABOUT 36 YEARS, R/AT NO.101, 2^ND CROSS, GKWPPD HBCS LAYOUT, LAGGERE, PEENYA 2^ND STAGE, BANGALORE-560 058.

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…APPELLANT

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[BY SRI. SHASHI KIRAN SHETTY, SR. COUNSEL FOR SRI. M. SREENIVASA, ADVOCATE (PH)] AND:

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1 . SRI. A.RAMAIAH, S/O LATE ABBAIAH, AGED ABOUT 70 YEARS, R/AT NO.137/A, NEAR MARAMMA TEMPLE, PATTANAGERE, RAJARAJESHWARI NAGAR, BANGALORE-560 098.

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Digitally signed by GURURAJ D Location: High Court Of Karnataka

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2 . KENGERI POLICE STATION, REP. BY POLICE INSPECTOR (LAW AND ORDER) MYSURU BANGALORE ROAD, KENGERI BANGALORE-560 060.

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…RESPONDENTS

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[BY SRI. M.R. RAJAGOPAL, SR. COUNSEL FOR SRI. Y.HARIPRASAD, ADVOCATE FOR R1(PH); SRI. RAMESH GOWDA A., AGA., FOR R2 (PH)]

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THIS M.F.A IS FILED UNDER ORDER 43, RULE 1(r) R/W SECTION 151 OF CPC., AGAINST THE ORDER DATED 20.04.2022 PASSED ON I.A. NO.1 IN O.S.NO.38/2022 ON THE FILE OF THE XXVII ADDITIONAL CITY CIVIL JUDGE, BENGALURU CITY, ALLOWING I.A.NO.1 FILED U/O. 39 RULE 1 AND 2 OF CPC.,

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MFA No. 4254 of 2022

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THIS APPEAL COMING ON FOR DICTATING JUDGMENT, THIS DAY, COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Challenging impugned order dated 20.04.2022, passed by

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XXVII Addl. City Civil & Sessions Judge, Bengaluru, in O.S.no.38/2022 on I.As.No.1 and 2 filed under Order XXXIX Rules 1 and 2 CPC, this appeal is filed.

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Appellant herein was defendant no.1, while respondent no.1 herein was plaintiff; respondent no.2 herein was defendant no.2. They will be referred to as such herein.

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O.S.no.38/2022 was filed by plaintiff against defendant no.1 for relief of permanent injunction restraining her from interfering with peaceful possession and enjoyment of suit schedule property and for mandatory injunction for removing temporary structure/constructed compound wall with roofing sheets illegally on eastern side portion of suit schedule property. Extent of two acres of land in Sy.no.11 of Pattanagere village, Kengeri Hobli (referred to as 'suit property' for brevity)

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MFA No. 4254 of 2022

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In said suit, plaintiff filed I.A.no.1 under Order XXXIX Rules 1 and 2 of CPC for temporary injunction restraining defendant no.1 and his agents or any persons claiming under him from interfering with his peaceful possession and enjoyment of suit schedule property till disposal of suit. On consideration, trial Court allowed application and granted temporary injunction. Assailing same defendant no.1 is in appeal.

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Sri. Shashi Kiran Shetty, learned Senior Counsel appearing for Sri. M.Srinivasa, advocate for defendant no.1/ appellant submitted that subject matter of appeal was only site no.112 carved out of Sy.nos.11, 12/2 and 13/2 of Pattanagere village. It was submitted that originally land bearing Sy.no.11 of Pattanagere village was Government land (Mupath Kaval). Portions of said land was granted to several grantees and one among them was Smt. Narasamma W/o late Byrappa. She was granted two acres of land in year 1945 bearing old Sy.no.11/4 and new Sy.no.11/P2. Subsequently, Smt.Narasamma and her son Munibyrappa sold said land to Sri.G.Satish under registered sale deed dated 23.02.1972.

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MFA No. 4254 of 2022

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It was submitted that said Sri.G.Satish also purchased extent of 01 acre 17 guntas in Sy.no.12/2 (including kharab) and 01 acre 27 guntas in Sy.No.13/2 from Sri. Gunduraj under registered sale deeds dated 19.07.1972. Thus, Sri.G.Satish became owner of total extent of 05 acres 04 guntas. His name was mutated in revenue records. Thereafter, he got said lands converted to non-agricultural purpose under order dated 14.01.2003. Thereafter, Sri.M.Ravishankar purchased these properties from Sri.G.Satish under registered sale deed dated 28.08.2003. After purchase, Sri.M.Ravishankar, laid 135 sites. One such site no.112 was sold to defendant no.1 under registered sale deed dated 16.12.2004. After purchase, she approached Pattanagere Grama Panchayat and got khata changed in her name on 01.06.2011. Thereafter she also got khata from BBMP and was paying property tax. Thus, she was in possession of site no.112.

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It was further submitted that said

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Sri.M.Ravishankar also sold site no.111 to

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Smt.Managalagowramma and site no.113 to Smt.Narasamma, daughter and wife of plaintiff respectively under registered sale

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MFA No. 4254 of 2022

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deeds dated 06.08.2008, referring to site no.112 as adjacent

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site in boundary description in schedules. It was contended that as site no.112 was in between 111 and 113, there was interference with defendant's possession of site no.112. When she resisted, above suit was filed.

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It was further submitted that sale deed dated 16.12.2004, khata certificates, property tax receipts and encumbrance certificates substantiated possession of defendant

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no.1 over site no.112. Ignoring said documents, trial Court passed impugned order granting injunction in favour of plaintiff.

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It was submitted that reasons assigned were :

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i) defendant no.1 failed to establish that site no.112 was located in land which was converted for non-agricultural purpose, since Sy.no.11 was large extent of 26 acres 2 guntas.

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ii) Deputy Commissioner in his affidavit stated that application for regularization of unauthorized occupation by Smt.Narasamma was pending.

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iii) though decree in O.S.no.94/2003 was under challenge in R.A.no.84/2021, there was no stay of decree and it prima facie establish plaintiffs’ possession over suit property.

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However, as plaintiff had not denied or disputed that

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lands in Sy.no.11/P2, 12/2 and 13/2 were not converted,

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MFA No. 4254 of 2022

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observation of trial Court was uncalled for. Further as Tahsildar,

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Bengaluru South taluk had issued endorsement stating that Smt.Narasamma's application for regularisation of unauthorised occupation was rejected on ground that land was located within 18 kms from BBMP limits. Therefore, assumption about pendency of application was unjustified. Apart from decree in O.S.no.94/2003, being under challenge in appeal by government, said decree was only against government and would not bind defendant no.1. Observation by trial Court that location of suit property was required to be established only after trial would also be a factor for refusing injunction. Further, if plaintiff was having title in respect of entire land in which site no.112 was carved out, there was no reason or justification for plaintiff’s wife and daughter for purchasing sites no.111 and 113 from Sri.M.Ravishankar, who was vendor of defendant no.1 also.

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It was further contended that plaintiff’s claim was entirely based on judgment and decree passed in O.S.no.94/2003. Even though plaintiff failed to produce any survey sketch or some like document to identify location of suit land in it, grant of injunction was untenable. It was further

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MFA No. 4254 of 2022

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argued that since plaintiff had obtained decree against Government, his reliefs ought to have been directed against it and not against others. It was further contended that application filed by respondent no.1/plaintiff for regularization of unauthorized occupation was already rejected on ground that said land was within 18 k.m. radius of Corporation limits as per endorsement dated 27.04.2021 issued by Tahsildar, Bangalore South Taluq.

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Further injunction was granted without even comparing boundaries, especially as boundaries in plaint schedule differed from those in O.S.no.94/2003 decree. It was submitted that above aspects would indicate that there was no prima facie case in favour of plaintiff. It was submitted that after purchase of site no.112, defendant no.1 had got khata changed in her name on 01.06.2011. She also obtained khata from BBMP and was paying property tax regularly. Such being case, even balance of convenience and irreparable loss and injury would be in favour of defendant no.1. It was submitted that for above reasons, impugned order was totally unjustified and called for interference.

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MFA No. 4254 of 2022

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On other hand, Sri.M.R.Rajagopal, learned Senior Counsel appearing for Sri.C.Prakash, advocate for plaintiff/respondent no.1 submitted that land bearing Sy.no.11 was a large extent of 26 acres. Several persons were in unauthorized occupation in respect of different extents therein. Plaintiff was claiming title in respect of 02 acres in Sy.no.11. In respect of said extent, application for regularisation was pending before committee, which by itself indicated plaintiff was in possession of suit property.

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Further, suit for declaration of plaintiff's title by adverse possession and for injunction against State Government in O.S.no.94/2003 was decreed in respect of two acres of Sy.no.11 of Pattanegere. Declaration of title by adverse possession also confirmed plaintiff's possession. Further, petition for setting aside ex-parte decree under Order IX Rule 13 of CPC was got dismissed as not pressed. Thereafter, though State had filed R.A.no.84/2021, there was no stay of judgment and decree passed in O.S.no.94/2003. Hence, same established possession of plaintiff.

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MFA No. 4254 of 2022

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Drawing attention to observations of trial Court that order of Deputy Commissioner granting permission for conversion did not clarify about extent of land converted. There was no material to establish that suit property was included in said order and therefore, it was not possible to decide location of suit property without trial. He submitted that Trial Court was justified in relying upon decree in favour of plaintiff, and pendency of application for regularization of unauthorized occupation and granting injunction as prima facie case, balance of convenience and irreparable loss and injury were in favour of plaintiff. It was lastly submitted that findings of trial Court was based on consideration of all available material and unless said findings suffered from perversity, there was no justification for any interference.

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Heard learned counsel, perused impugned order and records.

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On above submissions, only point that arises for consideration is:

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"Whether impugned order passed by trial Court allowing I.A for temporary injunction filed by plaintiff, under Order XXXIX Rule 1 and 2 of CPC calls for interference?"

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MFA No. 4254 of 2022

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From above submissions, it is not in dispute that

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while plaintiff was claiming title and possession in respect of 2 acres of land in Sy.no.11 of Pattanagere village under decree in O.S.no.94/2003 declaring title by adverse possession against Government and also on ground of pendency of application for regularisation of unauthorised occupation. While defendant no.1 was claiming title and possession in respect of site no.112 only measuring 30ft. X 50ft. under registered sale deed dated 16.12.2004 from Sri. M Ravishankar, who traces his title, ultimately, to order of year 1945 granting 2 acres out of total extent of 26 acres 02 guntas of government mufath kaval land in Sy.no.11 to Smt. Narasamma w/o late Byrappa.

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Before trial Court, plaintiff sought to substantiate title over suit property based upon decree in O.S.no.94/2003 and records indicating pendency of application for regularisation of unauthorised occupation filed by plaintiff. He disputed defendant's claim in respect of site no.112 and alleging said claim as interference with plaintiff's peaceful possession. On other hand, defendant no.1 produced sale deed dated 23.02.1972 executed by Smt. Narasamma, original

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MFA No. 4254 of 2022

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grantee and her son - Munibyrappa in favour of Sri. G.Sathish in respect of 2 acres of land bearing old Sy.no.11/4 and new Sy.no.11/P2 which together with other two lands purchased by Sri. G. Sathish from Sri. Gunduraj in Sy.no.12/2 - 1 acres 17 guntas and Sy.no.13/2 - 1 acre 27 guntas were got converted under order of Deputy Commissioner granted 14.01.2003 and sale deed executed by Sri. G.Sathish to Sri. M.Ravishankar on 28.08.2003. Defendant no.1 also produced revenue sketches and layout map indicating carving of site no.112 and sale deed dated 16.12.2004 executed by Sri. M.Ravishankar in favour of defendant no.1 selling site no.112. Apart from said documents defendant no.1 also produced khata certificates issued by Pattanagere panchayat on 01.06.2011 and BBMP khata dated 03.01.2022 and also property tax paid receipts and encumbrance certificate.

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On perusal of impugned order, it is seen that after referring to documents produced by plaintiffs, it concluded that prima facie title existed in favour of plaintiff. By merely referring to order dated 14.01.2003, passed by Special Deputy Commissioner, it observed that same would not show that 2 acres of land in Sy.no.11 were converted and whether land

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MFA No. 4254 of 2022

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converted was suit schedule property, which could be established only after full fledged trial. Perusal of order dated 14.01.2003, would indicate that conversion order was in respect of 4 acre 24 guntas of Sy.nos.11, 12/2 and 13/2 of Pattanagere. Therefore, observation would be contrary to record. Further sale deeds executed by Sri. G Sathish in favour Sri. M Ravishankar and in turn said Sri M Ravishankar in favour of defendant no.1 contain clear recital about site no.112 being carved out of Sy.nos.11, 12/2 and 13/2.

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In any case, since it was plaintiff's claim that site no.112 was part of suit property and without any title/possession, defendant no.1 was causing interference, it was for plaintiff to establish said fact. As observed by trial Court, it was unable to conclude whether suit property was part of extent got converted for non-agricultural purposes by Sri. G. Sathish, predecessor in title of defendant no.1, without full fledged trial. Such being case, referring to alleged short comings in case of defendant no.1, trial court could not have granted injunction. Its reliance upon decree in O.S.no.94/2003 when admittedly it was only against government and not against defendant no.1 or any of her predecessors in title, to

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MFA No. 4254 of 2022

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conclude prima facie case in favour of plaintiff would be perverse.

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Further defendant no.1 has also specifically pleaded and also produced (as Documents no.26 & 27) sale deeds in respect of site nos.111 and 113 whereunder plaintiff's wife and daughter purchased two sites adjacent to site no.112 of defendant no.1 from same vendor - Sri.Ravishankar M., which was without explanation.

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Admittedly, site no.112 is vacant plot. As per decision of Hon'ble Supreme Court in Anatahula Sudhakar Vs. P Buchi Reddy, reported in 2008(4) SCC 594, possession in respect of vacant site would have to be presumed as per title. Since, defendant no.1 produced registered sale deed dated 16.12.2004 and also predecessor's title deeds, apart from khata certificates issued by panchayat earlier and BBMP at present, failure to consider said documents by trial court would be a material irregularity if not perversity.

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It is also observed that plaintiff merely relied upon judgment and decree in O.S.no.94/2003, but failed to produce any survey report/sketch to indicate that site no.112 of

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MFA No. 4254 of 2022

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defendant no.1 was situated within suit property. Further defendant no.1 was issued khata by BBMP in respect of plot no.112. This would indicate that it was situated within BBMP limits. Further Section 94 - A of Karnataka Land Revenue Act, 1964, bars grant of land lying within 18 kms of limits of BBMP. Therefore, until consideration of plaintiff's application for regularisation and grant, plaintiff could not rely much on same to establish possession. Further boundaries in suit schedule differ from boundaries in decree in O.S.no.94/2003. Thus, impugned order suffers from perversity. Hence, point for consideration is answered in affirmative. Consequently following:

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ORDER

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Appeal is allowed.

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Impugned order dated 20.04.2022 passed by XXVII Addl. City Civil & Sessions Judge, Bengaluru, in O.S.no.38/2022 on I.A.No.1 and 2 filed under Order XXXIX Rules 1 and 2 CPC is set aside.

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No order as to cost.

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Sd/JUDGE

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GRD/Psg*

Smt Laxmi @ Lakshmi v. Sri a Ramaiah

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Smt Laxmi @ Lakshmi v. Sri a Ramaiah

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