Allowed

Smt Saraswathamma v. Sri Chandrappa

Karnataka HC7 Aug 2023MFA/1669/2023

Case brief

AI extract

What is this about?

Appeal dismissed the rejection of a temporary injunction application. The High Court allowed the appeal, setting aside the impugned order and directing the respondent authority not to disburse the acquired land compensation to new defendants pending the outcome of the ownership suit.

What did the court decide?

Impugned order set aside; Defendant No.4 restrained from disbursing compensation to Defendants 1 and 3; Amount directed to be deposited with Trial Court.

Smt Saraswathamma Vs Sri Chandrappa — Land Acquisition | Karnataka HC (2023)

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NC: 2023:KHC:27629 MFA No. 1669 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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MISCELLANEOUS FIRST APPEAL NO. 1669 OF 2023 (CPC)

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BETWEEN:

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SMT. SARASWATHAMMA D/O. LATE MALLAPPA W/O. MUNISWAMY M., AGED ABOUT 51 YEARS R/AT HOUSE NO.436, 2^ND CROSS DHARAMARAYANAGAR PALLAVI COLONY BANGARPET MAIN ROAD KOLAR TOWN AND DISTRICT-563 101

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…APPELLANT

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(BY SRI HEGDE RAMAKRISHNA S., ADVOCATE)

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AND:

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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SRI CHANDRAPPA S/O. LATE ANJINAPPA AGED ABOUT 52 YEARS R/AT PATALAMMA NILAYA NANJAMMA HOSPITAL ROAD MARUTHI EXTENSION MALUR TOWN AND TALUK KOLAR DISTRICT-563 101.

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SRI M.G. GANGARAM SINGH AGED ABOUT 56 YEARS S/O. CHANDRA SINGH R/AT MATHANKAPURA VILLAGE MASTHI HOBLI, MALUR TALUK KOLAR DISTRICT-563 101.

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NC: 2023:KHC:27629 MFA No. 1669 of 2023

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SMT. R. VIJAYALAKHSMI W/O. K. VENKATESH AGED ABOUT 66 YEARS R/AT AGRAHARA BEEDI G.H.P. SCHOOL ROAD MALUR TOWN AND TALUK KOLAR DISTICT-563 101.

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THE SPECIAL LAND ACQUISTION OFFICER KIADB, NO.1, KIADB NO.39, SHANTHI GRUHA BHARATH SCOUTS AND GUIDES BUILDING, 4^TH FLOOR PALACE ROAD BENGALURU-560 001.

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…RESPONDENTS

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(BY SRI AHMED KHAN, ADVOCATE FOR SRI C. SHANKAR REDDY, ADVOCATE FOR C/R1 AND 3; NOTICE TO R2 IS DISPENSED WITH V/O. DATED 17.04.2023; SMT. NAYANASHREE, ADVOCATE FOR SRI ASHOK N. NAYAK, ADVOCATE FOR R4)

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THIS MFA IS FILED U/O.43 RULE 1(r) R/W. SEC.151 OF CPC, AGAINST THE ORDER DT. 24.02.2023 PASSED ON IA NO.4 IN O.S.NO.177/2022 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MALUR, DISMISSING IA NO.4 FILED U/O.39 RULE 1 AND 2 R/W. SEC.151 OF CPC.

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

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JUDGMENT

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Heard the learned counsel for the appellant and learned

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counsel for the respondents.

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This miscellaneous first appeal is filed under Order

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43, Rule 1(r) of C.P.C. praying this Court to set aside the

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impugned order passed on I.A.No.4 filed under Order 39, Rule 1 and 2 read with Section 151 of C.P.C. dated 24.02.2023 passed in O.S.No.177/2022 by allowing this appeal.

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The factual matrix of the case of the appellantplaintiff herein is that the appellant has filed the suit in O.S.No.177/2022, wherein prayed the Court to direct the defendant No.4 not to disburse the compensation amount and declare that the plaintiff is the absolute owner. It is contended in the plaint that properties more fully described in the bottom of the plaint is suit schedule properties bearing old Sy.No.119 and new Sy.No.119/p2, after phodi new Sy.No.255/1 and 255/2 measuring an extent of 6 acre, 27 guntas, which situated at Bhavanahalli Village, Kasaba Hobli, Malur Taluk, Kolar District. It is contended that plaintiff is in peaceful possession and enjoyment of the suit schedule properties and the suit schedule properties originally belong to the Government Gomal land. The Government has granted the suit schedule properties in favour of father of the plaintiff i.e., Mallappa in LRF No.1137/74-75 vide order dated 28.05.1982. The Mallappa is in peaceful possession and enjoyment of the suit schedule properties during his life time. After the death of late Mallappa,

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the plaintiff is in peaceful possession and enjoyment of the suit schedule properties. It is contended that the defendants are illegally interfering with the possession of the suit schedule properties, even though they are not having any right, title and interest over the suit schedule properties. The defendants are also making hectic attempts to interfere with the possession of the plaintiff over the suit schedule properties. The same is resisted by the plaintiff and hence, sought for the relief of declaration of title.

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It is also contended in the plaint that defendant No.4 has proposed to acquire the said land for the public purpose and acquisition notice was issued. In the notice issued under Section 28(1) of KIADB Act dated 02.12.2020, the name of the owners have been wrongly shown as defendant Nos.10 to 13, who are not the owners in possession of the properties. But, the plaintiff is the absolute owner in possession and enjoyment of the properties. The defendant No.4 has proposed to acquire the suit schedule properties for the public purpose and acquisition notice was issued to the defendant Nos.1 and 3 and now, on the basis of illegal revenue entry, the defendant No.4 is trying to disburse the entire compensation amount in

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favour of defendant Nos.1 and 3. Further on 12.12.2020, the defendants have refused for declaration of title in respect of the suit schedule properties and the plaintiff was unable to issue prior notice to the defendant No.4, hence, filed an application under Section 80(2) of C.P.C. Therefore, filed the suit seeking the relief of declaration of title.

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The appellant-plaintiff has also filed an application in I.A.No.4 under Order 39, Rule 1 and 2 read with Section 151 of C.P.C. inter alia seeking the relief of temporary injunction restraining the defendant No.4 not to disburse the compensation amount to defendant Nos.1 and 3, till the disposal of the suit. The said application was resisted by the defendants by filing the statement of objections and denied the entire averments made in the plaint. The first contention raised by the defendants is that the plaintiff is not the daughter of late Mallappa. The plaintiff has not produced a single document to prove the relationship with the said Mallappa and only produced affidavit, family genealogical tree along with the plaint and the plaintiff is not the biological daughter of said Mallappa. It is also contended that, K. Muniswamy @ Kenchappa had sold the property bearing Sy.No.119/p2, new

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Sy.No.255/2 measuring 3 acres, 27 guntas to Anjinappa, who is the father of defendant No.1 by virtue of registered sale deed dated 20.02.2004, subsequently katha was changed in the name of father of defendant No.1. The defendant No.1 came to know regarding the dispute existing between the plaintiff’s mother and the said vendor-K. Muniswamy @ Kenchappa in O.S.No.158/1998. Though the said suit was dismissed, in the said suit, it is recited as decreed in favour of Muniswamy @ Kenchappa. The appellant-plaintiff has also filed the miscellaneous petition and had got re-opened the case. After restoring the suit, the same came to be dismissed and it was declared that Yelagamma was the legally wedded wife of Mallappa and the Muniswamy had failed to prove his title over the suit schedule properties. Admittedly, the suit was dismissed and an appeal was filed before the Court and the same was also dismissed and it has attained its finality.

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The defendant No.3 also in the written statement reiterated the averments made in the plaint that Muniswamy @ Kenchappa had sold the property bearing Sy.No.119/p2 and new Sy.No.255/1 measuring 3 acres to Sandappa and subsequently, katha was changed in the name of defendant

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No.3. That defendant No.3’s vendor came to know about dispute between plaintiff’s mother and the said vendorK.Muniswamy in O.S.No.158/1998 and Yelagamma was declared the legally wedded wife of Mallappa and the said Muniswamy failed to prove his title over the suit schedule properties. After contest, the suit came to be dismissed on 02.01.2006. Hence, he had also filed an appeal in R.A.No.11/2006 to set aside the judgment and decree in O.S.No.158/1998 and the same was also dismissed. However, the vendor-Muniswamy has not disclosed the pendency and disposal of the above suit. In the said suit, the defendants had tried to interfere with the possession of the defendant No.3 vendor by name Sandappa but, by that time, the said Sandappa along with daughters of said Mallappa had executed a sale deed in favour of defendant No.3’s vendor-Gangaram Singh for valuable sale consideration, as a consenting witnesses by virtue of registered sale deed dated 15.12.2014. After purchase of 3 acres of the portion of the schedule properties, the said Gangaram Singh had become the absolute owner of the suit schedule properties. The said Gangaram Singh has sold the property in Sy.No.255/1 in favour of defendant No.3 by

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virtue of registered sale deed dated 31.05.2018 and had put defendant No.3 in possession of the suit schedule property, measuring to an extent of 3 acres in old survey number and new Sy.No.255/1. Hence, it is contended by defendant Nos.1 and 3 that the plaintiff has not approached the Court with clean hands and also contend that the plaintiff is not entitled for the relief of temporary injunction.

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The Trial Court, considering the pleadings of both

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the plaintiff and the defendants, in Para No.24 of the order comes to the conclusion that Yelagamma was the wife of Mallappa and the suit in O.S.No.158/1998 and the appeal in R.A.No.11/2006, the same was observed and she was having two daughters namely, Gowramma and Lakshmamma and the plaintiff is not the daughter of deceased Mallappa contending that the plaintiff has produced only Xerox copy of admission extract of Government Higher Primary School and the same cannot be believed. The defendants have relied upon the document of sale deed and title derived through K. Muniswamy @ Kenchappa and thereafter, consent deeds are obtained from Yelagamma’s daughter Gowramma and her children in favour of defendant No.1 and Lakshmamma had also executed

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consenting sale deed dated 16.08.2011. Hence, the Trial Court comes to the conclusion that prima facie, the plaintiff has not produced any document to show that she is the daughter of Mallappa through Yelagamma and also suit in O.S.No.158/1998 was also disposed of and plaintiff was not party in the said suit and not claimed any right in the said suit and also taking note of the fact that I.A. is filed under Order 6, Rule 17 of C.P.C for amendment to the effect that plaintiff is the daughter born to Yelagamma through her second husband and observed that, in view of the above discussion, at present the issue is that whether the plaintiff is the daughter or not has not been revealed based on the document relied upon by the plaintiff and rejected the application filed under Order 39, Rule 1 and 2 read with Section 151 of C.P.C. Hence, the present appeal is filed before this Court.

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Learned counsel for the appellant would vehemently contend that the Trial Court committed an error in dismissing the application and the suit is filed to declare that the plaintiff is the absolute owner of the properties and also relief is sought against defendant No.4 not to disburse the amount. The counsel also would vehemently contend that the properties are

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acquired by defendant No.4 and unless the status of the plaintiff is decided and if the amount is disbursed in favour of the defendant Nos.1 and 3, it leads to multiplicity of proceedings and the Trial Court committed an error in coming to the conclusion that the document which has been produced by the plaintiff before the Court is only Xerox copy and not the original.

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Now, the learned counsel for the appellant has

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produced documents along with memo i.e., school admission extract of the appellant-Saraswathamma, wherein her date of birth is shown as 23.05.1977 and the name of the father is shown as Mallappa. The counsel referring the document of school admission extract of the appellant would contend that in the very school admission extract, at the time of application in the year 1977-1978, her father name is shown as Mallappa. The counsel, in support of his argument, relied upon the school admission extract of Lakshmamma and Gowramma, the name of the father is mentioned as Munishamappa at the time of admission in the year 1959-60. These documents clearly establish that Gowramma and Lakshmamma are the daughters of Yelagamma through Munishamappa and they are not the

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daughters of Mallappa and the appellant-plaintiff is the only daughter of Mallappa and the Trial Court committed error and failed to take note of the interim relief sought not to disburse the amount since, the plaintiff claims that she is the daughter of Mallappa.

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Learned counsel for the appellant has also produced the aadhaar card since, the aadhaar was disputed by the respondents on the earlier occasion mentioning that name of the plaintiff in the aadhaar card is mentioned as D/o. Lakshmana but, she claims that she is the daughter of Mallappa and husband name is mentioned as Munishamappa which is dated 07.11.2013 and original aadhaar card is also produced before the Court and contend that the very title claimed by the defendants are defective title. The counsel would vehemently contend that it is not in dispute that the property originally was granted in favour of Mallappa and Mallappa died in the year 1998 and thereafter, suit was filed in O.S.No.158/1998 and the same was dismissed and appeal was also filed against the same and the appeal was also dismissed. The counsel would vehemently contend that, during the pendency of the suit, the sale deed was executed by said

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Munishamappa in favour of Anjinappa in respect of item No.2 of the suit schedule property and his son had already sold the property in favour of Sandappa in respect of item No.2 and thereafter, they are claiming title by relying upon the sale deed. When the said Munishamppa, who is the brother of Mallappa was not having any title and his claim as to he is the only legal heir of Mallappa was turned down in O.S.No.158/1998 and also in the appeal, the said finding has attained its finality. Hence, it is clear that the title claimed by the defendants is defective title and the same also to be adjudicated by the Trial Court. Therefore, the counsel would submit that the Trial Court committed an error in dismissing the application filed under Order 39, Rule 1 and 2 read with Section 151 of C.P.C., wherein also relief is sought against respondent No.4 not to disburse the amount, till the disposal of the suit. Hence, it requires interference of this Court.

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Per contra, learned counsel for the respondentsdefendants would submit that the plaintiff has not claimed any right at the earlier point of time in the suit in O.S.No.158/1998 which was filed immediately after the death of Mallappa, wherein Lakshmamma and Gowramma have claimed that they

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are the daughters of Mallappa through Yelagamma and the Trial Court has also given finding to that effect and this appellant never approached the Court and title also flows through Munishamappa, who is the brother of Mallappa and subsequent to sale, other two daughters i.e., Lakshmamma and Goweramma have executed the consent sale deeds. The counsel also would vehemently contend that the very plaintiff in the affidavit claims that said Mallappa is the vendor’s father and again contend that she is the daughter and the very status of the plaintiff is doubtful. When such being the case, when she kept quiet for a longer period, this Court cannot interfere with the findings of the Trial Court and the Trial Court comes to such a conclusion doubting the very status of the plaintiff. Hence, it does not require any interference.

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The counsel also relied upon the aadhaar card which was generated on 29.09.2019 and downloaded on 14.10.2019, wherein the status of Saraswathamma is mentioned as daughter of Lakshmana and she is not the daughter of Mallappa. Hence, the Court has to take note of the same and which is xerox copy produced before this Court. The counsel would vehemently contend that when the title flows in

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favour of the defendants and original children of Yelagamma through Mallappa have executed the consent deeds in favour of the vendor of the defendants, the very contention that the title of the defendants is defective cannot be accepted.

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In reply to the arguments of the learned counsel for the respondents, learned counsel for the appellant would vehemently contend that from the document which he has produced i.e., original school admission extract, it is clear that Lakshmamma and Gowramma are the daughters of Munirshamappa and he is the first husband of Yelagamma and Mallappa is the second husband to Yelagamma and the plaintiff’s father is Mallappa and to that effect also, original school admission extract is produced before the Court. The counsel also would vehemently contend that, unless the Court decides the issue between the parties with regard to the status of the plaintiff, the Trial Court ought not to have rejected the application.

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Having heard the learned counsel for the appellant and learned counsel for the respondents and also the documents which have been relied upon by learned counsel for

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both the parties and also considering the reasoning given by

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the Trial Court, the following points arises for consideration before this Court:

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(1) Whether the Trial Court has committed an error in rejecting the application filed under Order 39, Rule 1 and 2 read with Section 151 of C.P.C.?

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(2) What order?

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Point No.(1)

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Having perused the pleadings of the parties, the plaintiff in the suit claims that she is the daughter of Mallappa and she is the only daughter and also pleaded in the plaint that the property was granted in favour of her father Mallappa in the year 1974-75 and after the death of her father, she became the owner of the property and also contend that she came to know about the fact that properties are acquired by defendant No.4 and defendant Nos.1 and 3 got created the revenue documents changing the revenue entries and the defendant No.4 has proposed to acquire the properties. It is not disputed by both the plaintiff and the defendants that the property originally belongs to Mallappa. The plaintiff claims that she is the daughter of late Mallappa.

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It is also important to note that the brother of said Mallappa earlier had filed the suit in O.S.No.158/1998 after the death of said Mallappa and he was unsuccessful in the said suit and an appeal was filed and the appeal was also dismissed. It is also important to note that during the pendency of the said suit, a sale deed was executed in favour of one Anjinappa i.e., the father of defendant No.1 in respect of item No.2 of the properties and in respect of the very same property, the said Munishamappa i.e., the brother of the Mallappa had executed the sale deed and subsequently, the sale deeds are executed in favour of other defendants, who are subsequent purchasers and issue between the parties is with regard to whether title flows in favour of the defendants since, the plaintiff has sought for the relief of declaration to declare that she is the owner of the properties and also sought for an interim order not to disburse the amount in favour of defendant Nos.1 and 3.

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It is also not in dispute that property was acquired by defendant No.4 and in respect of one item of the properties, amount has also been disbursed and in respect of other item of the properties, the amount is not yet disbursed. But, learned

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counsel for the appellant would submit that he was not having any knowledge of disbursal of the amount. It is the specific claim of the plaintiff that she is the daughter of Mallappa and learned counsel for the respondents disputes the same and contend that, in one breath she claims that she is the foster daughter and in another breath, claims that she is the daughter of Mallappa but, the documents which have been produced before this Court i.e., the school admission extract in respect of the plaintiff is of the year 1977-78 and other two documents are the school admission extract of the year 1959-60 in respect of Gowramma and Lakshmamma. According to the defendants, Gowramma and Lakshmamma are the daughters of Yelagamma through Mallappa. But, it is the contention of the plaintiff that they are the daughters of Yelagamma through the first husband Munishamappa and these two school admission extracts of the year 1959-60 disclose that the father name of Lakshmamma and Gowramma is mentioned is Munishamappa and not mentioned the name of the father as Mallappa as contended by the defendants. When such being the case, the Trial Court committed an error in coming to the conclusion that only xerox copy is produced before the Trial Court and when the issue

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involved between the parties is with regard to who is the owner of the properties, the same has to be decided by the Trial Court and when serious dispute is involved with regard to the status of the parties and documents now produced before the Court which are of the year 1959-60 are in respect of Gowramma and

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Lakshmamma and 1977-78 in respect of plaintiffSaraswathamma and these documents are undisputed, whether these documents are genuine or not is once again a matter of trial and the same has to be adjudicated by the Trial Court i.e., with regard to flow of title claimed by the defendants.

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I have already pointed out that there is no dispute with regard to the fact that properties were granted in favour of Mallappa and sale deeds are executed by the brother of Mallappa during the pendency of the suit and when the brother of Mallappa has suffered the suit as well as an appeal, the same also to be considered by the Trial Court. When such being the case, the Trial Court ought to have considered this aspect into consideration and also relief is sought not to disburse the amount. When there is a serious dispute with regard to the rights claimed by the defendants and the plaintiff claims that she is the daughter of Mallappa, the same has to be

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adjudicated in a full-fledged trial. Hence, it requires interference of this Court to set aside the order of the Trial Court and allow the application filed under Order 39, Rule 1 and 2 read with Section 151 of C.P.C., wherein a prayer was made to give direction to respondent No.4 not to disburse the amount. Admittedly, the defendant No.4 had acquired the property and unless the dispute between the parties is decided by the Court, even if the amount is disbursed, it will lead to multiplicity of proceedings. When such being the case, the order impugned is liable to be set aside and consequently, the application filed by the appellant-plaintiff is liable to be allowed and defendant No.4 has to be restrained from disbursing the amount, till the disposal of the suit. Accordingly, I answer point No.(1) as ‘affirmative’.

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Point No.(2)

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The appeal is allowed.

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(ii) The impugned order dated 24.02.2023 passed on I.A.No.4 in O.S.No.177/2022 is set aside and the defendant No.4 is directed not

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to disburse the amount in favour of defendant Nos.1 and 3 and deposit the same before the Trial Court.

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(iii) The Trial Court is directed to keep the amount deposited in the Fixed Deposit, which shall be subject to result of the suit.

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(iv) The Trial Court is directed to dispose of the matter as early as possible.

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Sd/JUDGE

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List No.: 1 Sl No.: 38

Smt Saraswathamma v. Sri Chandrappa

Case brief

What is this about?

What did the court decide?

Smt Saraswathamma v. Sri Chandrappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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