Dismissed

Sri Manjunath K v. Kum. Vidyashree K

Karnataka HC12 Nov 2024MFA/3446/2020

Case brief

AI extract

What is this about?

In this miscellaneous first appeal filed under Order 43 Rule 1(r) of CPC, the High Court of Karnataka dismissed the appeal against an order of the trial Court which rejected an application for temporary injunction. The Court upheld the trial Court's finding that the properties purchased by the plaintiff and defendants were distinct based on different boundaries, refusing to set aside the injunctio

What did the court decide?

Impugned order rejecting application for temporary injunction regarding property possession and obstructing construction/harassment was maintained.

Sri Manjunath K Vs Kum. Vidyashree K — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:45909 MFA No. 3446 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH MISCELLANEOUS FIRST APPEAL NO. 3446 OF 2020 (CPC)

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BETWEEN:

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SRI MANJUNATH K S/O KRISHNAPPA AGED ABOUT 33 YEARS, R/O NO.125/2, HOUSE NO.3 1^ST MAIN, 4^TH CROSS NEAR BILVAPATHREE TREE LAGGERE, BENGALURU NORTH PEENYA SMALL INDUSTRIES BENGALURU-560058.

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…APPELLANT

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(BY SRI. M.B.CHANDRACHOODA, ADVOCATE)

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AND:

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Digitally signed 1. KUM. VIDYASHREE K by DEVIKA M D/O KRISHNAPPA Location: HIGH AGED ABOUT 22 YEARS, COURT OF KARNATAKA R/O NO.234/6, 1^ST MAIN 4^TH CROSS, NEAR BILVAPATHREE TREE LAGGERE, BENGALURU NORTH PEENYA SMALL INDUSTRIES BENGALURU-560058.

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SMT. SHARADA K W/O T.K. SIDESHWAR AGED ABOUT 34 YEARS, R/O NO.125/2, HOUSE NO.3 NEAR BILVAPATHREE TREE LAGGERE, BENGALURU NORTH PEENYA SMALL INDUSTRIES

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2 - NC: 2024:KHC:45909 MFA No. 3446 of 2020

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BENGALURU-56004

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…RESPONDENTS

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(R-1 SERVED AND UNREPRESENTED VIDE ORDER DATED 12.07.2024 NOTICE TO R-2 IS DISPENSED WITH)

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THIS MFA FILED U/O. 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 09.07.2020 PASSED ON IA.NO.II, IN O.S. NO.5393/2018, ON THE FILE OF THE XL ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-41), BENGALURU, REJECTING THE IA.NO.II FILED UNDER ORDER 39, RULE 4 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 MR JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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Heard learned counsel appearing for the appellant. Inspite service of notice on respondent No.1, he did not choose to engage the counsel or appear in person before the Court. Notice against respondent No.2 is dispensed with at the instance of the appellant as he is not claiming any relief against respondent No.2.

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Respondent No.1 before the trial Court has filed

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a suit seeking the relief of permanent injunction restraining the defendants from interfering with peaceful

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3 - NC: 2024:KHC:45909 MFA No. 3446 of 2020

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possession and enjoyment of the suit schedule residential property bearing No.2(A) situated in Laggere, property having assessment No.123/2 having Khatha No.W-70/BPR/128/18-19, measuring East to West 40 feet, North to South 15 feet, total of 600 square feet consisting of residential building having total built up area of 1000

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square feet, situated at 1^st main, 4^th cross, Byreshwaranagar, Laggere, Yeshwanthpura Hobli, Bengaluru and boundaries are also described.

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It is the contention of the plaintiff that she got

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the schedule property from her mother through a registered sale deed. At the time of said transaction, plaintiff was minor represented by her father Krishnappa. Defendant Nos.1 and 2 are brother and sister of plaintiff. Defendants have picked up quarrel with father of plaintiff regarding share of schedule property. The defendants with an intention to cause loss to plaintiff sent a notice to the tenants occupying the schedule property asking them to vacate the premises for which the tenants have replied

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contending that schedule property belongs to plaintiff and they are tenants under the plaintiff. The defendants have

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no locus standi to issue notice or take any steps for vacating the tenants from the schedule premises. When the tenants failed to vacate the schedule premises, the defendants with the help of local goondas entered the premises and made an attempt to disconnect electricity and water connection. Further, they threatened the tenants from consequences if they fail to vacate. When this fact was brought to the notice of the plaintiff, plaintiff approached the jurisdictional police, but the police did not entertain and directed them to approach Civil Court as the matter is of civil in nature. Therefore, plaintiff constrained to file the suit seeking the relief against the defendants.

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Defendants appeared and filed written statement stating that plaintiff has suppressed the material facts and filed the suit. The defendants except admitting the relationship of plaintiff with them, have denied the other averments made out in the plaint. The

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5 - NC: 2024:KHC:45909 MFA No. 3446 of 2020

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defendants pleaded that property bearing residential site No.2, Assessment No.123/2 of Laggere, Bengaluru measuring East to West 40 feet and North to South 15 feet belongs to Puttathayamma. Muniyappa, the husband of Puttathayamma formed sites in non agricultural Sy. No.123/2 measuring 20 guntas. Puttathayamma and her legal heirs, Nagaraju, Lakshmamma and Nagamma have executed sale deed on 26.04.2018 in respect of schedule property in favour of the defendants.

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On the basis of sale deed, the defendants are in actual physical possession and enjoyment of the schedule property by exercising rights of ownership. The defendants contended that plaintiff has no manner of right, title and interest over the suit schedule property. It is also pleaded that the mother of plaintiff, Bhagyamma died on 07.11.1995. After the death of Bhagyamma, plaintiff created sale deed on 05.09.2014 by making impersonation in order to grab the property. The plaintiff is not in possession and enjoyment of the schedule property, but it

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6 - NC: 2024:KHC:45909 MFA No. 3446 of 2020

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is the defendants, who are in actual possession of the property.

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The plaintiff though aware of this fact, in order to grab the property with the help of forged documents is causing interference with the defendants’ possession and enjoyment of the schedule property. The plaintiff has also produced sale deed dated 08.09.2014, Encumbrance Certificate, Property Register Extract. The defendants produced death certificate of Bhagyamma, Post Mortem report of Bhagyamma, General Power of Attorney executed in favour of Bhagyamma dated 12.10.1980, sale deed dated 26.04.2018. The trial Court has taken note of the fact that plaintiff and defendant Nos.1 and 2 are the children of Krishnappa and Bhagyamma. Bhagyamma is the power of attorney holder of Muniyappa and his sons Nagaraj, Rangappa and Mohan have executed sale deed on 05.08.2014 in respect of schedule property.

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On the other hand, defendants contended that Puttathayamma, Nagaraju, wife and son of Muniyappa,

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wives of Rangappa and Mohan, the sons of Muniyappa have executed sale deed on 26.04.2018 in the name of defendant No.1 in respect of northern portion of site No.2 formed in Sy.No.123/2 of Laggere village measuring East to West 40 feet, North to South 15 feet bounded on East by road, West by site No.8, North by remaining portion of site No.2 and South by site No.3.

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The trial Court having considered the documents which have been submitted by both the parties, has taken note of earlier sale deed of the year 2014 executed by Bhagyamma on 05.09.2014 in the name of plaintiff in respect of southern portion of site No.2 and has also taken note of the sale deed dated 26.04.2018 executed in the name of defendant No.1 in respect of northern portion of site No.2. The property purchased by defendant No.1 and property entrusted to Bhagyamma through General Power of Attorney are one and the same. Property purchased by defendant No.1 and property purchased by plaintiff are altogether different. The plaintiff

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purchased southern portion of site No.2 and defendant No.1 purchased northern portion of site No.2. Boundary descriptions are also different. Defendants are no way connected with southern portion of site No.2. Whether sale deed executed in the name of plaintiff dated 05.09.2014 by Bhagyamma is subsequent to death of said Bhagyamma or not and same is created by impersonation or not is beyond the scope of the suit.

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The only point for consideration is whether the

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plaintiff is in possession of schedule property or not. Further, the property purchased by defendant No.1 is a vacant site, but property purchased by plaintiff is consisting of one square constructed building having AC sheet roof. There is no nexus between the schedule property and the property purchased by defendant No.1. The documents placed by plaintiff prima facie establishes possession over the schedule property. Hence, the trial Court accepted the case of the plaintiff and did not accept the case of the defendant and has come to the conclusion

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that the properties are distinct and have taken note that defendants have no right in respect of the suit schedule properties. However, they contend that they have purchased the schedule property and the same is the matter of trial. Hence, the trial Court answered point No.1 in the affirmative and point No.2 in the negative and has come to the conclusion that the plaintiff has made out the case for temporary injunction and the defendants have not made out the case to vacate the interim order already granted.

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Being aggrieved by the order passed by the trial Court, the main contention of the appellant is that the plaintiff claims the title based on the sale deed executed by Bhagyamma and Bhagyamma was no more as on the date of execution of sale deed and document discloses the forged signature of Bhagyamma. Learned counsel submits that as on the date of execution, Bhagyamma had died in the year 1995 itself and the death certificate is also produced and the document was created by impersonation

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and there cannot be any injunction order. Learned counsel also contend that there is title dispute and the simple relief of declaration is not maintainable since there is cloud on the title of the plaintiff. Learned counsel vehemently contend that the legal representatives of said Muniyappa based on power of attorney executed sale deed in the year 2018 in favour of the defendant.

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Having taken note of the material on record, sale deed in respect of the southern portion of site No.2 is purchased by the plaintiff and in respect of site No.2 purchased by defendant No.1 is concerned, the same is on the northern portion measuring East to West 40 feet and North to South 15 feet bounded on East by road, West by Site No.9, North by remaining area of site No.2 and South by Site No.3. In the sale deed of plaintiff, the measurement is same as 40 feet and 15 feet and boundaries are different compared to the sale deed of defendant . Hence, it is clear that boundaries are distinct and the same is also observed by the trial Court. Two sale

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deeds are executed. The property purchased by the defendants is northern portion of site No.2 and property purchased by the plaintiff is southern portion of site No.2 both measuring 40 x 15 feet and plaintiff on the southern portion and defendants on the northern portion.

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Having considered both the boundaries of plaintiff and defendants, it is observed that both are different and distinct. The claim made by plaintiff and defendants are different properties. No doubt, learned counsel for the appellant would contend that Bhagyamma was not alive as on the date of the said execution, no doubt, sale deed is of the year 2018, it appears that signature of Bhagyamma is forged. Whether the same was by impersonation, is the matter of trial. The defendant claims title in respect of the northern portion of 40 x 15 ft and the trial Court has also held that the properties are distinct and defendant has not made out any case.

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No doubt, title is disputed according to the contention of the appellant’s counsel, but they are not

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claiming the title in respect of the southern portion of the

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very same site and it is clear that northern portion was sold in favour of them through general power of attorney holder. When said material is available to prove that both are distinct and different, the contention of learned counsel for the appellant/defendant No.1 cannot be accepted.

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In view of the above discussion, I pass the following:

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ORDER

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Appeal is dismissed.

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Sd/(H.P.SANDESH) JUDGE

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MDS List No.: 1 Sl No.: 44

Sri Manjunath K v. Kum. Vidyashree K

Case brief

What is this about?

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Sri Manjunath K v. Kum. Vidyashree K

Case brief

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