Allowed

Smt Sampath Sai Garre v. Sri Christopher Giddens

Karnataka HC15 Nov 2024MFA/2191/2024

Case brief

AI extract

What is this about?

Appeal against dismissal of temporary injunction applications in a suit for declaration and injunction over disputed land in Bengaluru. The High Court found the Trial Court's order failed to analyse prima facie case, balance of convenience and hardship, set aside the impugned order, and remitted the matter to the Trial Court for fresh consideration.

What the court decided

AI extract

Smt Sampath Sai Garre Vs Sri Christopher Giddens — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:46502 MFA No. 2191 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF NOVEMBER, 2024

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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. 2191 OF 2024 (CPC)

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BETWEEN:

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SMT SAMPATH SAI GARRE, AGED ABOUT 51 YEARS, WIFE OF SRINIVAS S GARRE, PREVIOUSLY RESIDING AT NO.1, AVANTI, BRINDAVAN COLONY, LABBIPET, VIJAYAWADA - 520 010.

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PRESENTLY RESIDING AT 4149, ROCKY FORK TER, ELLENTON, STATE OF FLORIDA, FL 34222, UNITED STATES OF AMERICA.

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REPRESENTED BY HER GENERAL POWER OF ATTORNEY HOLDER,

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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SRI D. AMARNATHA REDDY, AGED ABOUT 55 YEARS, SON OF LATE D. SUBBA REDDY, RESIDING AT NO.157/1, 6TH CROSS, 1ST STAGE, BEML LAYOUT, RAMAGONDANAHALLI, BENGALURU - 560 066.

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…APPELLANT

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(BY SRI. C SHANKAR REDDY.,ADVOCATE)

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AND:

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SRI CHRISTOPHER GIDDENS, SON OF LATE SRI GIDDENS, AGED ABOUT 47 YEARS,

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2 - NC: 2024:KHC:46502 MFA No. 2191 of 2024

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RESIDING AT NO.242/1G, 4TH CROSS, BOREWELL ROAD, WHITEFIELD, BENGALURU - 560 066.

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SRI R MOHAN RAJ, FATHER'S NAME NOT KNOWN TO PLAINTIFF, AGED ABOUT 52 YEARS, AVAILABLE FOR SERVICE AT CORPORATION QUARTERS, KODIHALLI, BEHIND OLD CHECK POST, OLD AIRPORT ROAD, BENGALURU - 560 008. …RESPONDENTS

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(BY SRI. VENKATARAMI REDDY E., AND SRI. YASHASWINI R., FOR C/R1; SRI. EUGENE PRABHU B., AND SRI. K. N. NAGARAJA., FOR R2)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 27.01.2024 PASSED ON I.A. NOs.1 AND 2 IN O.S.NO. 426/2022 ON THE FILE OF THE VII ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, BENGALURU RURAL DISTRICT, BENGALURU, DISMISSING THE I.A. NOs. I AND II FILED UNDER ORDER 39 RULE 1 AND 2 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 MR JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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Heard learned counsel for the appellant and respondents.

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This appeal is filed challenging the order passed by

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the Trial Court in dismissing I.A.Nos.1 and 2 filed under Order

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XXXIX Rules 1 and 2 of Code of Civil Procedure.

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NC: 2024:KHC:46502 MFA No. 2191 of 2024

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Having heard learned counsel for the appellant and learned counsel appearing for the respondents and also taking note of the reasoning given by the Trial Court, the plaintiff claims relief of declaration and injunction in respect of the suit schedule property and also sought interim relief of temporary injunction against respondents in respect of the property, which has been described in the schedule, claiming that they are the owners of the property and all records stands in the name of the plaintiff. Originally, the father of defendant No.2 has purchased the immovable property bearing Sy.No.56/3 and Sy.No.23/7 Khata No.80, situated at Borewell Road, K. R. Puram Hobli, Bengaluru East Taluk, measuring Eastern side 93 feet, Western side 35 feet, Northern side 590 feet and southern side 610 feet, which is the written statement schedule property. The said property has been purchased by father and mother of plaintiff under Sale Deed dated 24.07.1992 from Paul D D'souza, who has been appointed as administrator of the probate of Will and estate of Late. Edith Cecelia Keeler @ E. C. keeler. Khata has been transferred in the name of said administrator, who has transferred in favour of father and mother of defendant No.2 under MR NO.1/1992-93.

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4 - NC: 2024:KHC:46502 MFA No. 2191 of 2024

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Accordingly, they are in possession and enjoyment of the suit schedule property. The plaintiffs are not having any right and title over written statement schedule property. But on the guise of Sale Deed dated 11.03.2004 claiming right over the written statement schedule property. The plaintiff has not in possession of written statement schedule property and prayed the Court to dismiss the IA's.

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The defendant No.3 has also filed written statement contending that originally plaint schedule property purchased by Doddamunishamappa and his brother Chikkamunishamappa from Mrs. E. A. Town about 5 acre 9 guntas in Sy.No.56/3. Subsequently, Doddamunishamamappa and his brother Chikkamunishamappa sold the plaint schedule property to Rathnammal Sameul, under Sale Deed dated 11.03.1944. She sold the same under Sale Deed dated 03.06.1950 to C. M. Writer. The said C. M. Writer executed the Sale deed dated 17.12.1965 in favour of A.Bose. Said person executed Will dated 09.06.1970 in favour of Rahamatha Sab. After the death of Rahamatha Sab, the name of her husband Jafrabai R Sheikh, he has executed Gift Deed dated 03.09.2020 in favour of his son Khaja Ali. The Khaja Ali, represented by GPA Holder Arun

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5 - NC: 2024:KHC:46502 MFA No. 2191 of 2024

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Kumar P., executed memorandum of understanding on 15.03.2021 in favour of defendant No.3. Ever since the purchase defendant No.3 is in peaceful possession and enjoyment of the suit schedule property.

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The Trial Court also taken note of the document produced by defendant Nos.2 and 3 and also the plaintiff. While considering the IA's in paragraph No.12, pleaded the case of the plaintiff and comes to the conclusion that, the plaintiff has not stated the mode of acquisition of the said property by Rathnammal Sameul, and also pleaded the case of defendant No.3. This is what he has stated in the written statement. But while considering the material on record, even not analysed the documents which have been produced by the plaintiff as well as defendants. Only an observation is made that plaintiff has filed suit for relief of declaration by filing a comprehensive suit and defendant Nos.2 and 3 have denied the plaint.

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The Trial Court fails to consider the prima facie case and directly comes to the conclusion that plaintiff has not made out any prima facie case and in order to come to such a conclusion that whether plaintiff has made out prima facie case

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6 - NC: 2024:KHC:46502 MFA No. 2191 of 2024

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or not, no discussion at all except mentioning the documents which have been produced by both the parties and also comes to a conclusion that cloud is cast upon the title of the plaintiff over the suit schedule property. Hence, the plaintiff has to prove his title during trial. But in order to grant the relief of temporary injunction nothing is discussed with regard to granting of the relief and relief is also sought against the defendants restraining from demolishing the compound wall from interfering with the possession of the plaintiff over the suit schedule property pending disposal of the case. Nothing is discussed in the order about prima facie case, balance of convenience and hardship, except mentioning that plaintiff has not made out a prima facie case.

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The Trial Court ought to have analyzed the documents, which have been filed by the plaintiff as well as defendants and ought to have come to the conclusion as to who has made out the prima facie case. A blanket order has been passed, only referring to the contentions of the parties. Hence, it requires interference of this Court to set aside the matter and direct the Trial Court to consider the matter afresh and analyse the cardinal principles while granting temporary injunction,

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7 - NC: 2024:KHC:46502 MFA No. 2191 of 2024

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examining the material placed by the plaintiff as well as the defendants and then come to a conclusion, in order to grant the discretionary relief of temporary injunction. Nothing is discussed with regard to whether the case has been made out or not and on whose favour balance of convenience lies and to whom the hardship will be caused.

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In view of the above discussion, I pass the

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following:

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ORDER

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i. The miscellaneous first appeal is allowed .

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ii. The Impugned order dated 27.01.2024 is set aside.

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iii. The matter is remitted back to the trial Court to consider the matter afresh within a period of 3 weeks from today.

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iv. Learned counsel for the appellant and learned counsel for the respondents are directed to furnish copy of this order, forthwith to the concerned Court and assist the Trial Court in

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8 - NC: 2024:KHC:46502 MFA No. 2191 of 2024

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disposal of IA's within the time bound period as stipulated by this Court.

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v. The contentions raised by both the appellant and respondents are kept open for consideration.

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Sd/(H.P.SANDESH) JUDGE

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AMA List No.: 1 Sl No.: 45

Smt Sampath Sai Garre v. Sri Christopher Giddens

Case brief

What is this about?

What the court decided

Smt Sampath Sai Garre v. Sri Christopher Giddens

Case brief

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What the court decided

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