Allowed

Sri Shantha Kumar v. Mohammed Israr

Karnataka HC17 Nov 2022WP/22893/2017

Case brief

AI extract

What is this about?

In a writ petition under Articles 226/227, the High Court of Karnataka addressed a dispute over immovable property where rival title claims existed. The court held that neither party could alter the property's nature pending trial. It modified the impugned appellate order, directing both petitioners and respondent to maintain status quo and restrain from any construction until the underlying civil

What did the court decide?

Petition allowed in part; impugned appellate order modified; parties directed to maintain status quo and restrained from undertaking any construction in the subject property until final adjudication i

Sri Shantha Kumar Vs Mohammed Israr — 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 17^TH DAY OF NOVEMBER 2022

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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.22893/2017 (GM-CPC)

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BETWEEN :

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SRI SHANTHA KUMAR S/O SRI AMMANNE GOWDA, AGED ABOUT 39 YEARS, R/O DASANAKOPPALU VILLAGE, JAYAPURA HOBLI, MYSORE TALUK, MYSORE DIST-570 001.

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SRI.JAYARAMU S/O SRI.AMMANNE GOWDA, AGED ABOUT 49 YEARS, R/O DASANAKOPPALU VILLAGE, JAYAPURA HOBLI, MYSORE TALUK, MYSORE DIST-570 001.

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... PETITIONERS

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(BY SRI.SUNIL K.N, ADVOCATE)

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AND :

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MOHAMMED ISRAR S/O MR.ABDUL WAJID, AGED ABOUT 38 YEARS, PROPRIETOR, THE STANDARD ASSOCIATES,

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... RESPONDENT

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NO.82/2BA, BOGADI, KASABA HOBLI, MYSORE-570 004.

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(BY SRI. B M HALASWAMY, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET-ASIDE THE ORDER DATED 6.4.2017 AS PER ANNEXURE-A PASSED BY THE IV ADDL. SENIOR CIVIL JUDGE, MYSORE IN M.A.NO.40/2016 BY WHICH ALLOWED THE SAID MISCELLANEOUS APPEAL FILED BY THE RESPONDENT AND THE ORDER PASSED ON I.A.NO.2 UNDER ORDER 39 RULES 1 & 2 OF THE C.P.C IN O.S.NO.8/26 DATED 20.4.2016 AS PER ANENXURE-F BY THE 1^ST ADDITIONAL CIVIL JUDGE AND JMFC MYSORE HAS BEEN SET ASIDE.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This petition is by the defendants in O.S. No.8/2016 on the file of the I Additional 1^st Civil Judge, & JMFC, Mysore [for short, 'the civil Court' ]. The petitioners have impugned the order dated 06.04.2017 in M.A. No.40/2016 on the file of the IV Additional

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Senior Civil Judge, Mysuru [for short, 'the appellate Court' ].

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The respondent – plaintiff has not succeeded in his application [I.A. No.2] under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 [for short, 'the CPC'] for temporary injunction against the petitioners from interfering with his possession of the immovable property measuring East to West 88 feet and North to South 542 feet¹ in Sy No.82/2B1, Bogadi, Kasaba Hobli, Mysuru [ the subject property ] with the civil Court rejecting this application by its order dated 20.04.2016. However, the appellate Court by its impugned order dated 06.04.2017 has set aside the civil Court's order dated 20.04.2016 restraining the petitioners from interfering with the respondent's possession of the subject property. The appellate Court

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1 This extent corresponds to about 1 acre and 3.75 guntas

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by the impugned order has also disposed of certain applications filed under Order XLI Rule 27 of CPC.

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The respondent's suit in O.S. No.8/2016 is for declaration that the sale deed dated 20.10.2015 executed by Sri. S Gopala Raju in favour of the first petitioner for a portion of the subject property² during the pendency of the suit in O.S. No.1043/2012 on the file of the IV Additional Civil Judge [Sr. Dn.], Mysuru is not binding on him because the transfer is hit by the doctrine of lis pendens and for the consequential relief of permanent injunction. The respondent has asserted that he is running a business under the name and style, ' M/s. Standard Associates ' and he uses the subject property for this business. He contends that he has acquired possession of this property from one Mr. Raju S/o Rajanna and he is in possession of the same for over sixteen years and that there are constant efforts to

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2 The Sale Deed is for 9 [nine] Guntas

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illegally dispossess him because he hails from the Mohammedan community.

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The respondent, to buttress his case that he is in possession of the subject property and there have been constant efforts to constrain him, has referred to his earlier proceedings in O.S. No.291/2008³ against certain third persons and his subsequent suit in O.S. No.885/2011⁴ on the file of the V Additional I Civil Judge [Jr. Dn.,] Mysuru against another set of third persons. As regards the petitioners, the respondent has averred that the petitioners’ vendor, Sri. S Gopala Raju, tried to dispossess him from the subject property and therefore he has instituted suit in O.S. No.1043/2012⁵ . However, during the pendency of this suit in O.S.

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3 The first respondent asserts that this suit in O.S. No.291/2008 for permanent is decreed on 27.09.2010, and this decree has attained finality

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4 The first respondent asserts that this is another suit by him for permanent injunction, is pending consideration

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5 The first respondent asserts that the suit is pending consideration on the file of the IV Additional Senior Civil Judge Mysuru.

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No.1043/2012, Sri. S Gopala Raju has executed the impugned sale deed dated 20.10.2015 in favour of the petitioners and as such, the transfer is hit by the doctrine of lis pendens .

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The petitioners, on the other hand, contend

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that the first petitioner has purchased 9 guntas in Sy. No.83/2B2 of Bogadi Village, Kasaba Hobli, Mysuru with certain boundaries from Sri. S Gopalaraju for consideration of Rs.27,00,000/- and he has tendered this sale consideration by way of a Demand Draft dated 14.09.2015. This extent of 9 guntas was vacant as on the date of the purchase, and he has constructed sheds with asbestos roofing. The petitioners, as regards the antecedent title to the extent of 9 guntas purchased by them, contend that Sri Rajeev Anjilokolaco Kamat has purchased a total extent of 1 acre 38 guntas in Sy. No. 82/2 [measuring 28 guntas], survey No. 83/2A [measuring 20 guntas] in survey No. 83/2B [measuring

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30 guntas] from the legal heirs of the original owner, Sri Ramaswamy under the sale deed registered in No.1719/1991-92. The first petitioner’s vendor, Sri. Gopala Raju, has purchased 9 guntas out of this larger extent from Sri. Rajeev Angilokalaco Kamat under the sale deed dated 01.08.2012 and the revenue records are mutated in his favour for this extent in MR.H4/201213.

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The civil Court, while rejecting the respondent's application for temporary injunction, has observed that the respondent relies only on an agreement that is dated 13.12.2005 purportedly executed by a certain Sri Raju but without placing any material on record to demonstrate how this Sri Raju has acquired interest in the subject property, and the petitioners have produced documents that demonstrate antecedent title to the extent claimed by them. The civil Court has also opined that the respondent cannot

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succeed on the ground that Sri Raju was in settled possession of the subject property opining that in the absence of necessary material on title even if it could be said that Sri Raju was in possession, it would only be illegal possession and no right would accrue in his favour or any person claiming under him.

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Further, the civil Court, on reading the documents produced by the respondent, has opined that though some documents such as [i] VAT certificate,

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[ii] Bills and Challans and [iii] correspondences and vouchers are produced, they do not establish the measurement or the boundaries, and the existence of the subject property as described by the respondent in the plaint is doubtful. Finally, the civil Court, on the question of possession of the subject property, has given precedence to the photographs relied upon by the petitioners to opine that these photographs show that the petitioners have constructed a shop and stored

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construction material while opining that though the first petitioner’s vendor, [Sri. S Gopala Raju] has sued him for possession of the subject property, the respondent cannot dispute that the petitioners are in possession thereof.

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The appellant Court, on the other hand, has interfered with the civil Court’s impugned order for the reasons that the petitioners do not dispute that the respondent has the advantage of a decree for permanent injunction in O.S. No.291/2008; that the petitioners’ transferor [Sri. S Gopala Raju] has purchased an extent of 9 guntas in the larger extent after the decree in this suit and he has commenced suit in O.S. No.1043/2012 against the respondent for declaration of title and for possession admitting that the respondent is in possession of 9 guntas; that during the pendency of this suit in O.S. No.1043/2012, he has transferred 9 [nine] guntas in favour of the first petitioner on 14.09.2015.

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The appellate Court has also opined that the respondent must succeed on the strength of the aforesaid decree and the transferor’s own case that he was not in possession of the 9 [nine] guntas when he instituted the suit in O.S. No. 1043/2012.

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The appellant Court has concluded that even if the respondent’s possession of the subject property is not as the absolute or true owner, the petitioners cannot be permitted to interfere with his possession of the subject property [or any portion thereof] in view of the law that nobody can take law into one’s own hands and disturb the possession of another. The appellate Court, in view of its conclusion in these regards, has concluded that the respondent has established prime facie case as also balance of convenience and injury for grant of temporary injunction in his favour, and the civil Court has overlooked these material circumstances.

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At this stage this Court must record that in

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the present proceedings on 01.07.2017, the parties have been directed to maintain status quo, and this interim order is continued from time to time. However, this interim arrangement is not extended on 31.03.2022, and this has prompted the petitioners to file an application [IA No. 1/2021] for restoration of the order directing maintenance of status quo . The respondent has filed an application [IA No. 2/2021] for expedited listing of the petition contending that the petitioners, in violation of this Court’s order to maintain status quo when it was in vogue, have constructed shops along the western and southern boundaries of the subject property taking advantage of the restrictions that were put in place because of Covid-19.

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The learned counsels for the parties have been heard, and they argue in support of and against the civil and the appellate Courts' orders respectively

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relying upon the circumstances that have prevailed with these Courts and also based on the assertions made in support of the applications. When the petitioners want restoration of this Court’s interim order directing maintenance of status quo and the respondent complains of violation of the order to maintain status quo when it was in force, the question for consideration is: whether this Court must provide for some interim arrangement to ensure that the nature of the subject property is not disturbed and is maintained as it stands without precipitation until the suit is decided on merits.

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In the present case, the respondent is able to establish that the first petitioner’s vendor [Sri. Gopala Raju] has commenced the suit [O.S. No.1043/2012] for declaration of title and for possession of 9 [nine] guntas in Survey No. 83/2-B, of Bogadi Village, Mysore admitting that the respondent is in possession of this extent though it is stated unlawfully. The respondent

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has not produced any document to establish title in the subject property in him or in his predecessors-ininterest. The petitioners on the other hand contend that the disputed extent of 9 [nine] guntas is part of the larger extent of 1 [one] acre 38 [thirty-eight] guntas in different survey numbers [including survey No.83/2-B] of Bogadi Village, Mysore originally owned by Sri Ramaswamy whose legal heirs have transferred this larger extent in favour of Sri Rajeev Anjilokolaco Kamat through their power of attorney and their vendor, Sri. Gopala Raju, has purchased 9 [nine] guntas out of this larger extent. The petitioners rely upon revenue records which correspond to these transfers.

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This Court must opine that these principal but rival submissions would necessarily mean that the civil Court will have to decide on the question of possession of the subject property as described in the plaint and in the light of the rival claims which hinge on

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better title. Significantly, the question of title to the subject property is also open to be examined in O.S. No.1043/2012 which is commenced by the first petitioner’s vendor [Sri. Gopala Raju]. In addition, there is another suit for permanent injunction pending consideration in O.S. No. 885/2000 which is commenced by the respondent against a certain Sri Mahesh Ballal and another. In these circumstances of the case, at this stage when the parties are yet to go to trial, one set of claims cannot have precedence over the other as that would enable change in the nature of the property during the pendency of multiple proceedings. This Court must opine that both the civil and appellate Courts have erred in giving precedence to one set of circumstances over the other.

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It is settled law that, unless irreparable loss

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or damage is established, a party to the proceedings cannot be permitted to alter the nature of the disputed

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property as it stands at an undisputed point of time when the Courts are seized of questions that will have to be decided after due enquiry to vindicate one of the two or multiple rival claims. The present case, where prime facie case - in the sense that a case for trial - is established, brings forth circumstances which impel this Court to opine that it becomes imperative that the aforesaid salient proposition must have its full play so that neither the respondent nor the petitioners can claim undue advantage during the pendency of the suit.

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If this proportion is to prevail thus, this Court must direct the respondent and the petitioners, notwithstanding the respective claims, to maintain status quo as regards the subject property without in any manner disturbing the nature thereof and also restraining both the petitioners and the respondent from undertaking any construction in the subject property. These directions will moderate balance of

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convenience and irreparable injury between conflicting claims of possession. Further, this Court must record that these categorical directions are necessary in view of the allegations that the petitioners have put up construction in 9 [nine] guntas in the subject property abutting “ Ring Road ” on the western side and “ Mysore – Bogadi Road ” on the southern side [ the respondent has described this as “Gadigge – Bogadi” Road] on the southern side despite this Court’s order. Hence the following

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ORDER

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The petition is allowed in part, and the impugned order dated 06.04.2017 in M.A. No.40/2016 on the file of the IV Additional Senior Civil Judge, Mysuru is modified directing both the petitioners and the respondent to maintain status quo with regard to the subject property without in any manner changing the nature thereof, including putting up any construction

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[ temporary or otherwise ], until the final adjudication in O.S. No.8/2016 on the file of I Additional 1^st Civil Judge, & JMFC, Mysuru.

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The pending applications stand disposed of with

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this order.

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Sd/JUDGE

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nv*

Sri Shantha Kumar v. Mohammed Israr

Case brief

What is this about?

What did the court decide?

Sri Shantha Kumar v. Mohammed Israr

Case brief

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