Allowed

A Nataraj v. Krishnamurthy

Karnataka HC8 Jun 2023RFA/984/2008

Case brief

AI extract

What is this about?

High Court allowed the appeal against a dismissal of a suit for permanent injunction regarding a cooperative society site. The court set aside the trial court's decree which relied on a prior order quashing the sale deed, directing the trial court to reconsider the suit afresh in light of a later order confirming the sale deed.

What did the court decide?

The judgment and decree dated 11.7.2008 in O.S.No.7731/2001 are set aside. The matter is remanded to the Trial Court to reconsider the suit afresh with liberty to adduce additional evidence.

A Nataraj Vs Krishnamurthy — Partition | Karnataka HC (2023)

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NC: 2023:KHC:19546 RFA No. 984 of 2008

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD REGULAR FIRST APPEAL NO. 984 OF 2008 (INJ)

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BETWEEN:

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A NATARAJ S/O SRI ARJUN AGED 43 YEARS R/A NO.9/A 4TH M BLOCK RAJAJI NAGAR BANGALORE 560010

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…APPELLANT

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(BY SRI. A KESHAVA BHAT, ADVOCATE)

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AND:

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Digitally signed KRISHNAMURTHY by DHANALAKSHMI S/O BASAPPA MURTHY AGED ABOUT 56 YEARS Location: High R/O NO.2, 5TH MAIN ROAD Court of Karnataka WEST CHORD ROAD SHIVANAGAR, RAJAJI NAGAR BANGALORE-560010.

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…RESPONDENT

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(BY SMT. P.C. VINITHA, ADVOCATE & SRI. T A KARUMBAIAH., ADVOCATE)

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NC: 2023:KHC:19546 RFA No. 984 of 2008

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF THE CPC AGAINST THE JUDGEMENT AND DECREE DATED:11.7.08 PASSED IN OS NO.7731/01 ON THE FILE OF THE XXXIX ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE, DISMISSING THE SUIT FOR PERMANENT INJUNCTION.

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

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JUDGMENT

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This appeal is filed by the appellant-plaintiff under Section 96 of CPC challenging the judgment and decree dated 11.7.2008 passed by XXXIX Addl. City Civil & Sessions Judge, Bengaluru in O.S.No.7731/2001,

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whereby the suit filed by the plaintiff has been dismissed.

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For the sake of convenience, the parties are referred to as per their ranking before the Trial Court in original suit.

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The case of the plaintiff:

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Plaintiff is the member of Karnataka Urban Housing

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Co-operative Society Limited. The Society had acquired

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the lands in Sy.No.60/1 an 61/1 of Agrahara Dasarahalli, Yeshwantpur Hobli, Bangalore for the purpose of forming residential layout and formed the layout, which has been approved by Bangalore Development Authority (BDA). By Resolution dated 23.10.1994, site No.64 at Agrahara Dasarahalli, West of Chord Road measuring 50x80 feet was allotted to the plaintiff. Pursuant to the allotment of site, the plaintiff has paid the consideration amount of Rs.100,000/- and thereafter the society has executed the registered sale deed dated 27.10.1994 in favour of plaintiff and possession was handed over to the plaintiff on the same day. Pursuant to that, katha has been changed in favour of the plaintiff and katha certificate has been issued by the BDA in the name of the plaintiff. The further case of the plaintiff is that on 3.10.2001 at about 10 a.m., when the plaintiff was getting the site cleaned up, the defendant came to be spot and threatened the plaintiff and his workers not to clean the site and tried to

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NC: 2023:KHC:19546 RFA No. 984 of 2008

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interfere with the suit schedule property. Therefore, the plaintiff filed the suit for permanent injunction.

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On service of suit summons, defendant appeared through counsel and filed the written statement denying the averments made in the plaint. It was contended by the defendant that the plaintiff is not in possession and enjoyment of the suit schedule property. The defendant has denied the execution of the sale deed in favour of the plaintiff. It was further contended that the society has allotted the site No.64 in favour of the defendant and issued possession certificate dated 30.8.1979 in his

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favour. The defendant has produced GPA dated 24.7.1980 executed by the society in his favour. He contended that the plaintiff is not in possession of the suit schedule property. Hence, the defendant had sought for dismissal of the suit.

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On the basis of the pleadings of the parties, the Trial Court has framed following issues:

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(1) Whether the plaintiff proves that he is in possession of the suit schedule property?

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(2) Whether the Plaintiff proves alleged obstruction?

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(3) Whether plaintiff is entitled for any relief?

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(4) What order? What decree?

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On behalf of the plaintiff, the plaintiff himself has been examined as PW-1 and produced 5 documents and marked as Exs.P-1 to 5. On behalf of the defendant, defendant himself has been examined as DW-1 and produced 10 documents marked as Exs.D-1 to 10. On appreciation of oral and documentary evidence, the Trial

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Court has answered issue Nos.1 to 3 in the negative and accordingly dismissed the suit. Being aggrieved by the same, the plaintiff has filed this appeal.

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The learned counsel for the appellant-plaintiff

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has contended that the suit schedule property has been allotted by the society in favour of the plaintiff and society has executed a registered sale deed dated

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27.10.1994 in favour of the plaintiff. After collecting consideration amount of Rs.100,000/- the society has

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also issued possession certificate to the plaintiff and plaintiff has been put in possession from 27.10.1994. Katha has been issued by the BDA in favour of the plaintiff. Defendant without any manner of right, title or interest over the suit schedule property tried to interfere with the suit schedule property. He further contended that the defendant also filed the suit in O.S.No.7709/2001 for permanent injunction. In both the suits i.e., O.S.No.7731/2001 and O.S.No.7709/2001, applications for temporary injunction were filed. Initially, both the suits were clubbed together and common order on applications for temporary injunction was passed on 9.11.2001 and in the said order, the Trial Court has given a clear finding that the possession certificate produced by plaintiff in O.S.No.7709/2001 i.e., respondent herein is surrounded with doubtful circumstances and Trial Court has also given a finding

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NC: 2023:KHC:19546 RFA No. 984 of 2008

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that the GPA executed by one Shankarappa is bogus and accordingly rejected the application for temporary injunction filed by the respondent-defendant herein and allowed the application filed by the appellant-plaintiff herein and granted an order temporary injunction in favour of the plaintiff. This finding of the Trial Court has not been challenged by the respondent herein and subsequently, respondent-defendant herein has withdrawn the suit i.e., O.S.No.7709/2001.

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He further contended that during the pendency of the suit, the allotment of sites in favour of the plaintiff and other members has been challenged by the society before the Assistant Registrar of the Co-operative Societies and the Assistant Registrar by order dated 29.12.2006 has set aside the sale deeds dated 27.10.1994 executed in favour of the plaintiff and few other sale deeds. Being aggrieved by the same, the plaintiff and similarly situated persons have preferred appeal before the Karnataka Appellate Tribunal (for

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NC: 2023:KHC:19546 RFA No. 984 of 2008

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short ‘KAT’). The KAT had stayed the operation of the order of the Assistant Registrar and since the plaintiff could not produce any document to show that the stay has been granted by the KAT, the Trial Court on the basis of the order of the Assistant Registrar has dismissed the suit i.e., O.S.No.7731/2001 vide judgment and decree dated 11.7.2008. He further contended that thereafter even the KAT has rejected the appeal preferred by the plaintiff by order dated 12.4.2012. Being aggrieved by the order passed by the KAT, the plaintiff and similarly situated persons filed W.P.No.21150/2012 and connected matters before this Court. This court by order dated 10.10.2013 has allowed the writ petitions, sale deed dated 27.10.1994 executed in favour of the plaintiff was confirmed and dispute raised by the Society before the KAT has been dismissed. Therefore, he contended that the finding given by the Trial Court that the plaintiff has no manner of right, title or interest over the suit schedule property

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NC: 2023:KHC:19546 RFA No. 984 of 2008

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is contrary to the materials available on record. Hence,

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he sought for allowing the appeal.

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The learned counsel for the respondent-

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defendant has contended that the suit schedule property

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has been allotted in favour of the defendant by the society and possession certificate has been issued on 30.8.1979 and also the Secretary has executed the GPA

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in favour of the defendant. Therefore, the defendant is the owner of the suit schedule property and in possession of the said property. She further contended that since the plaintiff has failed to prove his possession,

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the Trial Court has rightly rejected the suit. Hence, she sought for dismissal of the appeal.

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6. Heard the learned counsel for the parties.

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Perused the judgment and decree of the trial court and original records.

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NC: 2023:KHC:19546 RFA No. 984 of 2008

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The point that arises for consideration in this

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appeal is:

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“Whether the judgment and decree passed by the Trial Court is erroneous or perverse and does it call for interference of this court?”

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The case of the plaintiff is that he was the member of Karnataka Urban Housing Co-operative Society Limited. The Society by Resolution dated 23.10.1994 has allotted site No.64 at Agrahara Dasarahalli, West of Chord Road measuring 50x80 feet in favour of the plaintiff. After receiving the consideration amount of Rs.100,000/-, the society has executed the registered sale deed dated 27.10.1994 in favour of plaintiff and possession certificate was issued and possession was handed over to the plaintiff on the same day and he is in possession of the suit schedule property from the date of execution of sale deed. Since

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the defendant tried to interfere with the peaceful possession of plaintiff’s suit schedule property, the

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plaintiff filed the suit i.e., O.S.No.7731/2001 for permanent injunction.

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During the pendency of the suit, the society challenged the sale deed executed in favour of the plaintiff and similarly situated persons before the Assistant Registrar of the Co-operative Societies. The Assistant Registrar by order dated 29.12.2006 has set side the sale deeds executed by the society in favour of the plaintiff and similarly situated persons. Being aggrieved by the same, the plaintiff and similarly situated persons filed appeals before the KAT. The KAT by order dated 12.04.2012 has dismissed the appeals. Being aggrieved by the same, the plaintiff and others filed W.P.No.21150/2012 and connected matters before this Court. This Court by order dated 10.10.2013 has allowed the writ petitions, set aside the order passed by the KAT and dispute raised under Section 70 of the Karnataka Co-operative Societies Act has been dismissed. Further, the sale deed dated 27.10.1994

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NC: 2023:KHC:19546 RFA No. 984 of 2008

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executed by the society in favour of the plaintiff has been confirmed.

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The Trial Court while answering issue No.1 has mainly relied upon the order passed by the Assistant Registrar of the Co-operative Societies and order passed of the KAT and accordingly dismissed the suit of the plaintiff.

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In view of the subsequent development i.e., the order passed by this Court in W.P.No.21150/2012 and connected matters dated 10.10.2013, the matter requires to be reconsidered by the Trial Court.

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Accordingly, the appeal is allowed. The

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judgment and decree dated 11.7.2008 passed by XXXIX Addl. City Civil & Sessions Judge, Bengaluru in O.S.No.7731/2001 is set aside.

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The matter is remanded to the Trial Court with a

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direction to the Trial Court to reconsider the suit afresh.

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NC: 2023:KHC:19546 RFA No. 984 of 2008

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Both the parties are at liberty to adduce additional

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evidence and produce additional documents.

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The Trial Court after hearing the parties shall pass appropriate orders in accordance with law.

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Sd/JUDGE

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DM List No.: 1 Sl No.: 57

A Nataraj v. Krishnamurthy

Case brief

What is this about?

What did the court decide?

A Nataraj v. Krishnamurthy

Case brief

What is this about?

What did the court decide?

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