Disposed

Smt Suma v. Smt Suchitra K L

Karnataka HC19 Sept 2024MFA/1547/2024

Case brief

AI extract

What is this about?

Appeal against an interim injunction restraining defendants from construction in a title dispute. The High Court found both sides set up competing documentary titles requiring full trial, held the restraint caused hardship, disposed of the appeal, and allowed defendants to continue construction without claiming equities if the plaintiff ultimately succeeds.

What did the court decide?

Defendants permitted to continue construction; to forgo equities if plaintiff succeeds in suit/appeal; all IAs closed.

Smt Suma Vs Smt Suchitra K L — Specific Performance | Karnataka HC (2024)

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NC: 2024:KHC:38701 MFA No. 1547 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO. 1547 OF 2024 (CPC)

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BETWEEN:

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SMT. SUMA, W/O SRI. KADARAPPA, AGED ABOUT 42 YEARS.

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SRI. KADARAPPA S/O SRI. OBALAIAH AGED ABOUT 52 YEARS. APPELLANTS 1 AND 2 ARE BOTH R/AT KANAKAPURA TOWN, OPPOSITE TO SURI PETROL BUNK, RAGHAVENDRA COLONY, KANAKAPURA - 562 117.

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…APPELLANTS

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Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA

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(BY SRI. A. MADHUSUDHANA RAO, ADVOCATE)

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AND:

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SMT. SUCHITRA K.L., W/O SRI. SWAMY GOWDA, D/O SRI. LINGAIAH, MAJOR, R/AT NO.1690, 7^TH MAIN ROAD, 7^TH CROSS, HAMPINAGARA, VIJAYANAGARA II STAGE, BENGALURU - 560 014

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…RESPONDENT

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(BY SRI. PRADEEP J.S., ADVOCATE)

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2 - NC: 2024:KHC:38701 MFA No. 1547 of 2024

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 29.01.2024 PASSED ON I.A. NO.1 IN O.S.NO. 565/2023 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C., KANAKAPURA, ALLOWING THE I.A. NO.1 FILED UNDER ORDER XXXIX RULES 1 AND 2 READ WITH SECTION 151 OF CPC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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ORAL JUDGMENT

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Aggrieved by the orders passed on I.A.No.1 in O.S.No.565/2023 dated 29.01.2024, by the Court of the Senior Civil Judge & J.M.F.C., Kanakapura, the defendants are before this Court.

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The respondent herein who is the plaintiff in the suit had filed a suit seeking relief of declaration that she is the absolute owner of the plaint item Nos.1 and 2 of the suit schedule properties and also a mandatory injunction directing the defendants to remove illegal and unauthorized structure put up by them in plaint item Nos.1

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3 - NC: 2024:KHC:38701 MFA No. 1547 of 2024

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and 2 of the schedule properties at the cost of the defendants and also seeking recovery of possession of plaint item Nos.1 and 2 of the schedule properties. It is the case of the plaintiff that she is the absolute owner of item Nos.1 and 2 of the properties. These properties are in Sy.No.688/1 measuring 0.30 guntas and Sy.No.688/2 measuring 0.37 guntas and properties belonged to the ancestor of the plaintiff, late J. Subbe Gowda. After his death, these properties devolved on his son Lingaiah i.e., father of the plaintiff. They have converted the lands as per the order dated 11.07.1984. Pursuant to the order of conversion, Lingaiah had formed residential layout comprising several sites including the suit schedule sites. The family had entered into partition deed dated 19.03.1993, wherein the schedule properties and other properties were allotted to the share of Lingaiah. The father of the plaintiff i.e., Lingaiah executed a Will dated 06.12.2005 bequeathing the schedule properties in favour of the plaintiff. He died on 15.01.2006 and thereafter, plaintiff became the absolute owner and he is in

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possession of the suit schedule properties and property records are also transferred in the name of the plaintiff. Since 17 years, the plaintiff is in possession and enjoyment of the suit schedule properties. In the month of January 2023, when the plaintiff along with her husband visited the site, they have removed the weeds and again on 10.07.2023, when they have visited the site, the plaintiff has found that the construction activity was going on in the property, wherein the foundation was already laid and the workers were preparing to raise pillars and

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defendant Nos.1 and 2 were present at the suit schedule properties. When the plaintiff demanded the defendants to stop the construction, they did not oblige and the plaintiff had filed a complaint before the police. It is stated that the defendants have purchased the properties. Hence, they have come up with the present suit. The defendants have filed their written statement. It is the specific case that after the partition, the brother of the respondent had sold the properties on 20.06.2003. Thereafter, in the year 2008, there was a sale transaction and the defendants

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5 - NC: 2024:KHC:38701 MFA No. 1547 of 2024

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have purchased the property on 05.06.2023 and now they are making construction and they claimed that they are the owners of the property which purchased by them from the son of Lingaiah. The Trial Court had allowed the IA filed by the plaintiff and restrained the respondents/ defendants from making further construction. While allowing the application, the Court gave the finding that the defendants have not disclosed in which survey number, the property purchased by defendant No.1 comes and it is not the case of the defendants that the property

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purchased by defendant No.1 comes within Sy.Nos.688/1 or 688/2 and as could be seen from the sale deed dated 20.06.2003 executed by Sunil Kumar in favour of

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Bhagyamma with respect to the property bearing No. 6178/5657, northern side boundary is mentioned as Municipal Road but in the sale deed dated 15.09.2008 executed by Bhagryamm in favour of Smt. Seethalakshmi, northern side boundary is mentioned as property of others. How, this northern side boundary changed from Municipal road to private property is not explained by the

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defendants. This continued in the sale deed of defendant No.1 and also in the building license and approved plan. The burden lies on the defendants and this discrepancy they have not explained properly. The Court felt that prima facie , it appears that the defendants were putting up construction over the suit schedule properties probably having failed to locate the property purchased by defendant No.1, owning to the discrepancy in the boundaries in her sale deed. Whether the property of defendant No.1 is actually situated in Sy.No.686/3 and whether she is putting up construction in the property purchased by her is to be adjudicated after recording evidence of the parties. When there is a serious dispute involved in the case, which requires recording of evidence and examination of parties and appreciation of evidence. It is sufficient to hold that there is a prima facie case in the assertion of the plaintiff. The Court felt that in view of the

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said finding, the defendants cannot be permitted to continue with the construction and if the same is

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7 - NC: 2024:KHC:38701 MFA No. 1547 of 2024

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continued, it would cause irreparable loss to the plaintiff and accordingly, granted the injunction.

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Learned counsel appearing for the appellants/ defendants submits that when the property was sold in the year 2003, for the first time by the brother of the plaintiff and she is relying on the Will of the year 2005 and thereafter, in 2008 one sale had taken place and in fact they have purchased property in the year 2013. The Court cannot come to the conclusion that the plaintiff has made out a prima facie case. It is submitted that in view of the injunction granted, the defendants are now restrained from carrying out with the construction. In these kind of cases where the injunction has to be granted, the Hon’ble Apex Court time and again had observed that the Court has to consider in the event the defendants succeed in the appeal what is the loss that would be caused to the defendants and that has to ascertained. It is submitted that if the suit is pending for several years and they will not able to complete the construction, it will cause more

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damage to the defendants as the construction cost and other things also have to be taken into consideration. It is submitted that the trial court ought not to have granted an injunction against the defendants.

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Learned counsel appearing for the respondent/ plaintiff submits that the Court had considered the prima facie case and the balance of convenience, which lies in favour of the plaintiff and had rightly granted the injunction. It is submitted that by relying on several documents, the plaintiff could make out a prima facie case and no grounds are made out seeking interference with the well considered order passed by the trail Court.

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Having heard the learned counsel on either side, perused the material on record. The suit is filed for declaration of title, mandatory injunction and recovery of possession. Both the plaintiff and the defendants are setting up their title basing on the documents. According to the plaintiff, the property belongs to her father Lingaiah and he has executed a Will in the year 2005.

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NC: 2024:KHC:38701 MFA No. 1547 of 2024

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According to the defendants, the defendants’ vendors’ vendor had purchased the property from the brother of the plaintiff i.e., the son of Lingaiah after the partition and the

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first transaction is in the year 2003 and the defendants have purchased it in the year 2013 and for the last 10 years, they have been in possession of the property. The Court had relied more on the discrepancies with regard to

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one side of schedule and basing on that the Court has come to the conclusion that the plaintiff had made out a prima facie case. In the considered opinion of this Court,

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the order of the trial Court in restraining the defendants from making further construction is not a well considered order. When the defendants are setting up the title basing on sale deed of the year 2013 and the vendors’ vendor sale deed of the year 2003 and at this point of time, if the defendants are restrained from making further construction, it would cause lot of hardship to the defendants. Prima facie, the defendants have also made out a prima facie case that they are the owners of the property by virtue of the documents. Whether the property

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which is purchased by the defendants is the suit schedule property or some other property and all these things will

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have to be decided after a full fledged trial and on this aspect, the Court has rightly observed that restraining the defendants from making construction at this point of time under the facts and circumstances, is not a well considered order.

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In the light of the above discussions, this Court

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is passing the following order :

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ORDER

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(i) The appeal is disposed of.

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(ii) The defendants are at liberty to proceed with the construction, in the event, the plaintiff succeeds in the appeal, they shall not claim any equities.

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(iii) All IAs. in the appeal shall stand closed.

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SD/(LALITHA KANNEGANTI) JUDGE

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KA, List No.: 1 Sl No.: 25

Smt Suma v. Smt Suchitra K L

Case brief

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Smt Suma v. Smt Suchitra K L

Case brief

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