Disposed

Smt D K Vinoda Kumari v. Shri K Venkatesh

Karnataka HC13 Jul 2022MFA/6817/2021

Case brief

AI extract

What is this about?

The single-judge High Court disposed of aMiscellaneous First Appeal against the rejection of a temporary injunction application. The court held that the original rejection was unsustainable due to unimpleaded third-party purchasers but granted liberty to the appellants to file a new application impleading them, to be considered independently.

What did the court decide?

The appeal was disposed of; liberty was granted to the appellants to file a fresh injunction application impleading third-party purchasers.

Smt D K Vinoda Kumari Vs Shri K Venkatesh — Property and Title | Karnataka HC (2022)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 13^TH DAY OF JULY, 2022

¶4

BEFORE

¶5

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

¶6

MISCELLANEOUS FIRST APPEAL NO.6817/2021 (CPC)

¶7

BETWEEN:

¶8

SMT D K VINODA KUMARI W/O LATE K. SHANTHARAJU AGED ABOUT 61 YEARS,

¶9

SHRI SAURAV SANDESH A S S/O LATE K SHANTHARAJU AGED ABOUT 28 YEARS,

¶10

BOTH ARE RESIDING AT SAI SOUDHA SSK NURSERY, 12^TH MAIN 15^TH CROSS, J P NAGAR V PHASE BANGALORE - 560 078.

¶11

... APPELLANTS (BY SRI. VISWANATHA SETTY V, ADVOCATE)

¶12

AND:

¶13

SHRI K. VENKATESH S/O KRISHANAPPA AGED ABOUT 45 YEARS,

¶14

SHRI K. NAGARAJ S/O KRISHNAPPA AGED ABOUT 42 YEARS,

¶15

SMT K SHAKUNTALA D/O KRISHNAPPA AGED ABOUT 40 YEARS ALL ARE R/AT RAGHAVANAPALYA UTTARAHALLI HOBLI

¶16

¶17

BANGALORE SOUTH TALUK BENGALURU-560 061.

¶18

... RESPONDENTS (BY SRI.J.C. KUMAR, ADVOCATE FOR C/R2)

¶19

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 29.09.2020 PASSED ON IA NO.2 IN O.S.NO.2671/2020 ON THE FILE OF THE XIV ADDITIONAL CITY CIVIL JUDGE, BENGALURU, (CCH NO.28), DISMISSING IA NO.2 FILED U/O.39 RULE 1 AND 2 R/W SECTION 151 OF CPC.

¶20

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

¶21

JUDGMENT

¶22

This appeal is by the plaintiffs in

¶23

O.S.No.2671/2020 on the file of the XIV Additional City

¶24

Civil and Sessions Judge, Bengaluru [for short, ‘ the civil Court’ ]. The civil Court by the impugned order dated 29.09.2020 has rejected the appellants’ application [I.A. No.2] for temporary injunction under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 [for short, ‘the CPC’ ] restraining the respondents from alienating a portion of the total extent

¶25

¶26

which measures 2 acres 25 guntas in Sy.No.39/1 of Raghuvanapalya Village, Uttarahalli Hobli. The appellant has described this portion, measuring 1 acre 12 guntas, in the plaint schedule 'B' and is hereinafter called as 'subject land' .

¶27

The appellants have filed this suit in O.S.No.2671/2020 for declaration that they are the owners of the subject land and for declaration that the sale deed executed by the undisputed owner, Sri.Thimmaiah, in favour of Smt.Lakshmamma for the subject land is void and non-est and for other consequential reliefs. The interim application [IA No.2] is for temporary injunction against the respondents alienating the subject land.

¶28

The appellants contend that they are the

¶29

owners of not only to the subject land but also of the larger extent of land in Sy.No.39/1 of Raghuvanapalya Village, Uttarahalli Hobli, Bangalore because

¶30

¶31

Sri.Thimmaiah and his son- Sri.Krishnappa, who are registered as the occupants under the provisions of Mysore ( Personal and Miscellaneous ) Inams Abolition Act, 1954 in case No.15/1959-60, have transferred such larger extent in favour of Shantharaju K under the Sale Deed dated 28.11.1989. The appellants are Sri.Shantharaju's wife and son. The revenue records for the subject land are mutated in favour of Sri Shantharaju K. vide mutation extract in MR No.3/199890. The revenue entries continued in his name until the commencement of proceedings under Section 136(3) of the Karnataka Land Revenue Act, 1964 in RA(S) No.153/2009-10.

¶32

The appellants, in support of their title to the subject land as also the larger property, further contend that the BDA had issued Preliminary Notification under Section 16 of the Bangalore Development Authority Act, 1976 on 17.11.1988 proposing to acquire the land in

¶33

¶34

Sy.No.39/1 of Raghuvanapalya Village, Uttarahalli Hobli, Bangalore for formation of 6^th phase, J.P. Nagar. Sri.Shantharaju K., because he was the owner of the entire property of this land and in possession thereof, has successfully challenged the Preliminary Notification before this Court in the writ petition in W.P.No.17469/1998¹ . Sri Shantharaju K., even at that undisputed point of time, is categorical that he was running a nursery in the subject land, and it should be excluded from the acquisition proceedings.

¶35

The appellants also contend that the BDA has challenged this Court's order in Writ appeal No.5029/2000, but this appeal is disposed of as withdrawn by the BDA. Consequentially, Sri.Shantharaju K. retained absolute ownership. On his demise on 7.6.2009, they and his two daughters have succeeded to the subject land. Until the revenue entries for the subject land in favour of Sri Shantharaju K. was 1 This writ petition is allowed on 22.2.2000.

¶36

¶37

challenged in RA No.153/2009, they continued to have the benefit of the revenue entries. The revenue entries are challenged by the respondent's mother, Smt.Akkayamma on the basis of the sale deed dated 10.10.1960, and this sale deed cannot prevail because Sri Shantharaju K. is a bona fide purchaser for value.

¶38

On the other hand, the learned counsel for the respondents contends that their grandmother, Smt.Lakshmamma, purchased the subject land from Sri.Thimmaiah, the registered occupant, under the Sale Deed dated 10.10.1960, and after the demise of Smt.Lakshmamma, their mother – Smt. Akkayamma continued in possession of the subject land and as such, she impugned the revenue entries in favour of Sri.Shantharaju K. in the manner known to law in initiating the proceedings in RA No.153/2009-10. They have succeeded in these proceedings with the appeal being allowed on 4.3.2011 and confirmation of this

¶39

- 7 -

¶40

order in the subsequent revision petition in Revision Petition No.166/2013-14² as also further proceedings in the writ petition in W.P.No.32154/2015³ and the appellant's writ appeal in W.A.No.1385/2018⁴ .

¶41

The respondents further contended that even

¶42

before the appellants commenced the suit, the sale deeds for two extents of 10 guntas in the subject land are executed on 16.11.2019 and 18.11.2019 in favour of common purchasers, Sri R.Babu and R.Chandrashekar.

¶43

They have the benefit of the revenue entries in MR Nos.2 and 3/2019-20. The third respondent has also executed gift deed in favour of the first respondent transferring 20 guntas of the subject land with the consequential revenue entries in MRH No.4/2020. These transactions are prior to the institution of the suit but have not been referred to in the plaint and in fact,

¶44

2 The revision petition is dismissed on 23.3.2015

¶45

3 The writ petition is dismissed on 16.3.2018

¶46

4 The Writ appeal is dismissed on 23.04.2019

¶47

¶48

the aforesaid third-party purchasers are also not arrayed as parties.

¶49

The civil Court, in consideration of these rival pleas, has rejected the application for injunction against alienation. It is uncontested by the learned counsels that the civil Court has relied heavily upon the conclusion of the revenue proceedings in favour of the appellants with the decision of this Court in W.P.No.32154/2015.

¶50

Sri V.Viswanath Setty, the learned counsel

¶51

for the appellants, submits that because the appellants did not know about the subsequent transfers as asserted by the respondents, there is no reference to such transfers and as such the concerned have not been impleaded. However, neither this failure nor the conclusions in the revenue proceedings could be a reason for rejection of the appellants' application for temporary injunction from alienating or creating third

¶52

¶53

party interests in the subject property. The learned counsel also submits that the appellants' case that Sri Shantharaju K. was a bona fide purchaser for value must be examined not only in the context of the conclusion of the revenue proceedings but also in the context of the proceedings in W.P.No.17469/1998 commenced by him calling in question the initiation of the acquisition proceedings by the BDA.

¶54

Sri J.C.Kumar, the learned counsel for the second respondent, submits that the appellants are not only guilty of suppressing the registered transactions as of the date of institution of the plaint but also suppressing the commencement and conclusion of the earlier proceedings against a third person Sri.Sreenivasa Shetty. The learned counsel submits that this third person has filed a suit in O.S.No.572/1998 for specific performance asserting that Sri Shantharaju K. had agreed to sell the subject land. This suit is decreed

¶55

- 10 -

¶56

on 25.10.2006 and the appeal as against such decree is also dismissed with the dismissal of the appeal in RFA No.1896/2010 on 5.8.2016. In rejoinder, Sri.V.Viswanath Setty submits that dismissal of the RFA is by default, and presently, an application is filed for restoration of such appeal.

¶57

The fact that certain third-party rights are created in the subject land before commencement of the suit would be material for the purposes of the present appeal. This Court must opine that if the appellants cannot deny that the substantial portion of the subject land is transferred in three different portions including the transfer of two parcels of 10 guntas each in favour of the third -party purchasers with consequential revenue entries in their favour, their application for injunction only against the respondents cannot be sustained. This Court therefore cannot find any fault with the rejection of the application.

¶58

11 -

¶59

However, on perusal of the impugned order, and the rival submissions, including the reliance on the conclusion in W.P.No.17469/1998 and the appellants' case that their predecessor-in-title, Sri. Shantharaju K. was a bona fide purchaser for value of the entire property, the appellants must have liberty to file necessary application for injunction if third party purchasers are permitted to be brought on record with necessary pleadings as against them, and this Court must also observe that if the circumstances justify and an application for injunction is filed, the same must be considered independent of any observation in the impugned order.

¶60

The appeal is disposed of accordingly.

¶61

SA Ct:sr

Smt D K Vinoda Kumari v. Shri K Venkatesh

Case brief

What is this about?

What did the court decide?

Smt D K Vinoda Kumari v. Shri K Venkatesh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt Hemavathi Vs M/S Megacity(Bengaluru) Developers and Builders

Divyajothi Credit Cooperative Society Ltd. Vs the Deputy Registrar

Caterpillar Financial Services India Private Limited Vs Venkatesh

Smt K M Manjula Vs Smt K M Prabhamani

The Deputy Director, Vs M/S Republic Saw Mill

Caterpillar Financial Services India Private Limited Vs Tarun Kumar Koduri