Disposed

Smt Anjana Sundar v. Sri D P Nagaraj

Karnataka HC14 Oct 2024MFA/2817/2015

Case brief

AI extract

What is this about?

Appeal against rejection of temporary injunction in a suit where plaintiff claimed a site carved out of Sy.No.25/15 under a Will and sale deed, and defendants claimed granted land in Sy.No.25/1 under the KPTCL Act. The High Court found no prima facie case established and upheld the Trial Court order, directing disposal of the suit within nine months.

What did the court decide?

Appeal disposed of upholding rejection of temporary injunction; Trial Court directed to dispose of the suit within nine months.

Smt Anjana Sundar Vs Sri D P Nagaraj — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:41454 MFA No. 2817 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF OCTOBER, 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.2817 OF 2015 (CPC)

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BETWEEN:

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SMT. ANJANA SUNDAR, AGED ABOUT 49 YEARS, W/O C.G.SUNDAR, R/AT NO.170, 18^TH CROSS, MC LAYOUT, VIJAYANAGAR, BANGALORE-560 040.

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…APPELLANT

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(BY SMT. SONA VAKKUND, ADVOCATE)

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AND:

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SRI D.P. NAGARAJ, AGED ABOUT 55 YEARS, S/O LATE C. POOJAPPA.

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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SRI D.P. KESHAVAMURTHY, AGED ABOUT 52 YEARS, S/O LATE C.POOJAPPA.

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SRI D.P. KUMARASWAMY AGED ABOUT 51 YEARS, S/O LATE C.POOJAPPA.

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SRI D.P. MANJUNATH, MAJOR IN AGE, S/O LATE C.POOJAPPA.

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ALL ARE R/O CHIKKADEVASANDRA VILLAGE, K.R.PURAM HOBLI, BANGALORE EAST TALUK, BANGALORE.

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…RESPONDENTS

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(BY SRI B.R. VISWANATH, ADVOCATE FOR R1 TO R4)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 25.03.2015 PASSED ON I.A.NO.1 IN O.S.NO.7191/2014 ON THE FILE OF THE 42^ND ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE, DISMISSING I.A.NO.1 FILED UNDER ORDER 39 RULE 1 & 2 OF CPC.

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THIS APPEAL, COMING ON FOR FINAL HEARING, 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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This matter is listed for final hearing. Heard the learned counsel for the appellant and the learned counsel for the respondents.

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This appeal is filed challenging the order of the Trial Court in rejecting the application filed under Order 39 Rules 1 and 2 of CPC.

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The learned counsel for the appellant/plaintiff would

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contend that the Trial Court has committed an error in rejecting the application filed under Order 39 Rules 1 and 2 of CPC. The learned counsel mainly contend that the Trial Court committed an error in taking into note of the suit schedule property is carved out of Sy.No.25/15 and not in Sy.No.25/1 which has been claimed by the defendants. The learned counsel contend that the Trial Court committed an error in coming to the

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conclusion that the property was granted land in favour of the defendants and there is a bar in selling the property belonging to SC/ST. It is also contended that the learned Civil Judge has exceeded in exercising the jurisdiction in dismissing the application on the ground that the Court may not get the jurisdiction in the absence of any evidence and without deciding the fact that whether the defendants have obtained any order before the Assistant Commissioner with regard to the suit schedule property. The Trial Court committed an error in not taking into note of the material placed by the plaintiff/appellant. The Trial Court also failed to see that the order relied upon by the respondents claiming right over Sy.No.25/1 did not come within the purview of the said survey number and the site formed bearing No.37 comes within Sy.No.25/15 and the order relied upon by the respondents was stayed on the very same ground by the Deputy Commissioner in Appeal No.SC/ST/A108/13-14. The Trial Court failed to realize that there was an imminent threat of dispossession and the possession of the appellant and the same ought to have been protected and committed an error in dismissing the said application.

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NC: 2024:KHC:41454 MFA No. 2817 of 2015

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The learned counsel also filed the written submission

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before the Court and also produced the documents of the approved layout plan and copy of the phodi and latest tax paid receipts and submit that the Trial Court failed to consider these documents. The learned counsel also relied upon the orders passed by this Court in W.P.No.60483/2016 (SC-ST) disposed of on 05.07.2021 in the case of Munnaiah and others v. The Deputy Commissioner, Bangalore District and others, W.P.No.5266/2014 (SC-ST) disposed of on 14.09.2020 in the case of T.M. Muniraju v. State of Karnataka, Department of Revenue and others and W.P.No.49143/2014 (SC-ST) disposed of on 09.01.2020 in the case of Smt. Manjula v. State of Karnataka by its Secretary Department of Revenue.

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Relying upon these orders, the learned counsel would contend that once the site was formed and layout plan is also produced before the Court and also property is identifiable and also though challenge was made under Section 4(1) and (2) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands Act, 1978 (‘KPTCL Act’ for short), ought not to have invoked the said provision and committed an error in rejecting the application filed under Order 39 Rules 1 and 2 of CPC. The Trial Court committed an error in

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paragraph No.10 of its order taking note of the defence of the defendants and relying upon the judgment reported in 2012(3) Karnataka Civil and Criminal Reporter 2006 and also relying upon the judgment reported in 2012(3) KCCR 2057 in the case of Veerayya v. G.K. Madivalar , wherein Section 11 of the KPTCL Act has been relied upon and observed with regard to the Act to over ride other laws. Considering these citations, the Trial Court comes to the erroneous conclusion that when the defendants contend that the suit property is the portion of the land granted by the Assistant Commissioner in favour of C.Poojappa, through whom he has inherited the property and when the title of the parties are under dispute, comes to the conclusion that no prima facie case is made out by the plaintiff and the said conclusion is erroneous and it requires interference.

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Per contra, the learned counsel for the

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respondents/defendants would vehemently contend that the defendants appeared and filed the written statement and took the specific defence in the written statement that the suit itself is not maintainable. The suit schedule property is the portion of Sy.No.25/1, which was measuring 2 acres. The said property has been allotted to C.Poojappa by the Assistant Commissioner under the KPTCL Act. In this regard, the defendants have

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produced the documents. The plaintiff has also produced the copy of the sale deed in the name of her aunt and also produced the Will. Based on the said document, the plaintiff claimed the relief of injunction. In the plaint itself, the plaintiff contended that the defendants have disclosed the order of the Assistant Commissioner in No.KSC.ST.64/09-10, which pertains to Sy.No.25 measuring 2 acres. The said dispute is in respect of Sy.Nos.25/2 and 25/15, wherein nearly 140 sites have been formed. The Assistant Commissioner has passed the order and the said order has been challenged by the plaintiff before the Deputy Commissioner. Hence, it clearly goes to show that the defendants and the plaintiff are claiming title based on the said document and there is a dispute. The plaintiff has not made out any prima facie case and the Trial Court rightly comes to the conclusion that when there is a dispute with regard to the title as well as the defendants contend that the land was granted land and hence rightly invoked the provisions of KPTCL Act as well as the property has not been converted. The learned counsel contend that ITI notified area is not a competent authority under the Planning Act to approve the layout as relied upon by the plaintiff. The learned counsel submits that in the pleadings the plaintiff has nowhere pleaded that the site is

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carved out of Sy.No.25/15 and nothing is stated in the sale deed relied upon by the plaintiff that the same is purchased by her aunt Smt. Seetalakshmi. Hence, the Trial Court rightly comes to the conclusion that the plaintiff has not made out any prima facie case.

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Having heard the learned counsel for the appellant/plaintiff and the learned counsel for the respondents/defendants, it is not in dispute that the plaintiff claims the property based on the Will executed by Smt. Seetalakshmi, who is the aunt of the plaintiff. It is also the contention of the plaintiff that the said Seetalakshmi had purchased the property vide sale deed dated 15.10.1990. Having perused the sale deed which is produced before the Court dated 15.10.1990, no doubt it is mentioned that the suit schedule property mentioned in the sale deed is the property acquired by the vendor is an ancestral property. The vendors are C.Poojappa and D.P.Nagaraj, who is the son of C.Poojappa. Having perused the schedule of the sale deed, it is mentioned as house site No.37, ITI notified area, khatha No.487/1/25/15/37, situated at Basavanapura Village, Devasandra, K.R. Puram Hobli, Bangalore South Taluk, measuring 30 x 40 ft. and boundaries are also described. When the learned counsel for

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the plaintiff contend that it is the ancestral property of the vendor of the plaintiff’s aunt, no such document of Sy.No.25/15 is placed before the Court and instead of relies upon the layout plan and phodi documents. On the other hand, the defendants contend that the property was granted to the extent of 2 acres and also specific contention was taken by the defendants that nowhere it is mentioned that the said site was carved out of Sy.No.25/15. Having perused the plaint as well as the sale deed which the plaintiff relies upon, nowhere it is stated that the suit schedule property is carved out of Sy.No.25/15. On the other hand, the defendants claim that the property in Sy.No.25/1 was the granted land.

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The main contention of the learned counsel for the appellant is that the said site was formed out of Sy.No.25/15 and in order to substantiate the same when the plaintiff seeks the relief of temporary injunction, the plaintiff has to place the prima facie document to that effect and no such documents are placed before the Court. There is a dispute with regard to the very title is concerned and no doubt, the suit is filed for the relief of permanent injunction and inter alia sought for temporary injunction. The plaintiff claims that the site is carved out of Sy.No.25/15 and the defendants claim that the said

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property is Sy.No.25/1 and the same is a granted land. Prima facie material has to be placed by the plaintiff to show that the said site is carved out of Sy.No.25/15 and no such documents are placed before the Court and only relies upon the layout plan document, wherein survey number is mentioned. When such

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being the case and when the dispute is with regard to the identity of the property as well as title is also in dispute and when the plaintiff seeks for the relief of permanent injunction, inter alia sought for temporary injunction to restrain the defendants, unless the plaintiff makes out a prima facie case, the question of granting temporary injunction does not arise. The cardinal principles in granting temporary injunction, the plaintiff has to make out a prima facie case and balance of convenience and hardship and nothing has been placed on record to prove the prima facie case. When such being the case, I do not find any error committed by the Trial Court in dismissing the application. However, taking into note of the suit is of the year 2014 and one decade has been elapsed and also as it is submitted that even evidence has not been commenced, hence it is appropriate to direct the Trial Court to dispose of the suit within a time bound period of nine months from the date of the receipt of copy of this order. The respective parties and the

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10 -

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respective learned counsel are directed to assist the Trial Court in disposal of the suit within the time bound period, since dispute is with regard to the identity of the property as the plaintiff claims that the site is carved out of Sy.No.25/15 and on the other hand, the defendants claim that the same is carved out of Sy.No.25/1.

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Accordingly, the appeal is disposed of.

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Sd/(H.P.SANDESH) JUDGE

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List No.: 1 Sl No.: 51

Smt Anjana Sundar v. Sri D P Nagaraj

Case brief

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Smt Anjana Sundar v. Sri D P Nagaraj

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