Dismissed

M Kempanna v. Rajith N R

Karnataka HC14 Mar 2024MFA/375/2024

Case brief

AI extract

What is this about?

Defendants appealed an interim injunction granted to plaintiff in a suit over two sites in Dasarahalli, Bengaluru, where both parties traced title to distinct portions of Sy. No.42/3. Court upheld trial court's injunction maintaining status quo pending trial, dismissed appeal, but directed both parties not to construct on the sites until disposal of suit.

What did the court decide?

Interim injunction maintained; both parties directed not to construct on suit properties until disposal of suit.

M Kempanna Vs Rajith N R — Specific Performance | Karnataka HC (2024)

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NC: 2024:KHC:10813 MFA No. 375 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ MISCELLANEOUS FIRST APPEAL NO. 375 OF 2024 (CPC)

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BETWEEN:

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M. KEMPANNA S/O LATE MUNISWAMAPPA AGED ABOUT 75 YEARS, R/AT NO.3, 10^TH CROSS, BHUVANESHWARI NAGAR, DASARAHALLI, BANGALORE-560 024

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SMT. JAYAMMA W/O M. KEMPANNA AGED ABOUT 69 YEARS R/AT NO.3, 10^TH CROSS, BHUVANESHWARI NAGAR, DASARAHALLI, BANGALORE-560 024.

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Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA

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SMT. RATHNAMMA D/O M. KEMPANNA AGED ABOUT 49 YEARS R/O FIRST FLOOR, KEMPANNA BUILDING, 18^TH CROSS, SRIRAMPURA MAIN ROAD, AMRUTHAHALLI, BANGALORE-560 092.

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SMT. BHARATHI D/O M. KEMPANNA AGED ABOUT 47 YEARS R/AT NO.3, 10^TH CROSS BHUVANESHWARI NAGAR,

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DASARAHALLI, BANGALORE-560 024.

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NC: 2024:KHC:10813 MFA No. 375 of 2024

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KEMPARAJU S/O M. KEMPANNA AGED ABOUT 44 YEARS R/AT NO.3, 10^TH CROSS BHUVANESHWARI NAGAR DASARAHALLI, BANGALORE 560 024

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SMT. VIMALA D/O M. KEMPANNA AGED ABOUT 42 YEARS, R/AT NO.3, 10^TH CROSS, BHUVANESHWARI NAGAR, DASARAHALLI, BANGALORE-560 024.

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…APPELLANTS

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(BY SRI. SANTHOSH, ADVOCATE FOR SRI. VARADARAJAN M.S., ADVOCATE) AND:

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RAJITH N.R. S/O RANGASWAMY, AGED ABOUT 37 YEARS, NO.176, MYSORE ROAD, OPP. TO GHALI ANJANEYA TEMPLE, BYTRAYANAPURA, BANGLAORE CITY, BANGALORE-560 092

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SMT. NETRAVATHI D/O M. KEMPANNA AGED ABOUT 40 YEARS R/AT NO.3, 10^TH CROSS, BHUVANESHWARI NAGAR, DASARAHALLI, BANGALORE-560 024

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…RESPONDENTS

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(BY SRI. ABHILASH H.S., ADVOCATE FOR SRI. H.V.SHYAME GOWDA, ADVOCATE FOR CAVEATOR / RESPONDENT NO.1)

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NC: 2024:KHC:10813 MFA No. 375 of 2024

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE ORDER DATED 06.01.2024 PASSED ON I.A.NO.1 IN OS.NO.7288/2023 ON THE FILE OF THE XXXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY [CCH-40], ALLOWING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC.

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

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JUDGMENT

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Defendant Nos.1 to 6 in O.S. No.7288/2023 on the file of XXXIX Additional City Civil and Sessions Judge, Bengaluru, have filed this appeal challenging an order dated 06.01.2024 by which an application (I.A. No.I) filed by the plaintiff under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (for short, 'CPC') was allowed.

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The suit in O.S. No.7288/2023 was filed for perpetual injunction restraining the defendants from interfering with the possession of the plaintiff in respect of

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NC: 2024:KHC:10813 MFA No. 375 of 2024

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the suit schedule properties. The suit schedule properties were two sites bearing Nos.10 and 14 lying within Dasarahalli village, K.R. Puram Hobli, presently called Bhuvaneshwarinagar, Bengaluru East Taluk, Bengaluru, measuring East to West 60 feet and North to South 40 feet. The plaintiff claimed that he was the owner of the suit properties having purchased them in terms of two sale deeds, both dated 07.12.2022. He claimed that a person named Sri Chikkamuniyappa was the owner of 01 acre 20 guntas of land in Sy. No.42 of Dasarahalli village, K.R. Puram hobli, Bengaluru South Taluk later, Bengaluru East Taluk, having purchased it in terms of a sale deed dated 29.06.1959. Later, the said Sri Chikkamuniyappa along with Mr. B.K. Gopalashetty formed a residential layout in the entire 01 acre 20 guntas in the year 1988-89 and sold sites formed therein to various purchasers. Smt.Jagadamba Thavare, the vendor of the plaintiff had purchased suit properties in terms of the sale deeds dated 28.04.1993 and 27.05.1993 and that she was placed in possession of the suit properties. The plaintiff claimed that

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NC: 2024:KHC:10813 MFA No. 375 of 2024

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the municipal documents in respect of the suit properties stood in the name of his vendor but since his vendor was suffering from cancer, she offered to sell the properties to meet her immediate necessities. The plaintiff claimed that after purchasing the suit properties, when he intended to put up the construction over the suit properties, the defendant No.1 questioned the title of the plaintiff over the suit properties which resulted in a police complaint etc. The plaintiff claimed that Sri Chikkamuniyappa and defendants were related to each other. The plaintiff claimed that the defendants were not concerned with the land bearing Sy. No.42 of Dasarahalli village measuring an extent of 01 acre 20 guntas. He claimed that the entire area was developed and lay within the limits of Bruhat Bengaluru Mahanagara Palike (BBMP) and several properties lying adjacent to the suit properties were all developed. He claimed that the defendants were attempting to interfere with the possession of the plaintiff in respect of the suit properties only with an illegal intention to extract money from the plaintiff and therefore,

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he filed the suit for perpetual injunction. The plaintiff sought for an order of interim injunction to restrain the defendants from interfering with the plaintiff's possession of the suit properties.

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The suit was contested by the defendant No.1 who claimed that the land bearing Sy. No.42 of Dasarahalli measured 4½ acres. He claimed that out of the said extent, he purchased 1-20 acres in Sy.No.42/3 from Sri Biliyappa in terms of a sale deed dated 22.05.1978. He claimed that he was in possession of 01 acre 20 guntas in Sy.No.42/3 and had constructed a house and an industrial shed after obtaining appropriate licence from Dasarahalli Panchayat. He claimed that Smt. Jagadamba Tavare tried to interfere with his possession in the land bearing Sy. No.42/3 measuring to an extent of 01 acre 20 guntas on the ground that she had purchased the suit schedule sites from Sri B.K. Gopala Setty, the power of attorney holder of Sri Chikkamuniyappa. Therefore, he filed O.S. No.9225/2004 against Smt. Jagadamba Thavare and Sri

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NC: 2024:KHC:10813 MFA No. 375 of 2024

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B.K. Gopala setty for perpetual injunction. He claimed that after a full fledged trial, the suit was decreed by the V Additional City Civil Judge, Bengaluru on 13.09.2007. The defendant No.1 contended that later, Smt. Jagadamba Thavare filed a suit in O.S. No.25486/2007 before the IV Additional City Civil and Sessions Judge, Mayohall Unit, Benaluru, against him and Sri Chikkamuniyappa and Sri B.K. Gopala Setty for declaration of title in respect of her two sites which dismissed for non-prosecution on 30.11.2011. After such dismissal, Smt. Jagadamba Tavare

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sold two sites to the plaintiff in terms of two sale deeds, both dated 07.12.2022. He claimed that since the possession of the defendant No.1 was established in O.S. No.9225/2004, the instant suit (O.S. No.7288/2023) was hit by the principles of res judicata and the plaintiff was estopped from claiming any manner of right, title or interest in the suit schedule properties. The defendant No.1 claimed that the plaintiff taking advantage of the sale deeds in his name was interfering with his possession and therefore, the defendant No.1 filed O.S. No.6499/2023

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before the XLI Additional City Civil and Sessions Judge, Bengaluru, against the plaintiff where the Court granted an order of temporary injunction in favour of the defendant No.1. He, therefore, contended that the plaintiff is not entitled for any reliefs much less the interim order to protect his possession against the defendants.

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The Trial court after considering the contentions of the learned counsel for the parties as well as the documents placed on record, allowed the application (I.A. No.1) filed by the plaintiff for interim injunction in terms of the impugned order on the ground that the predecessorin-title of the plaintiff had purchased 01 acre 20 guntas of

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land in Sy. No.42 lying on the northern side while the predecessor-in-title of the defendant No.1 had purchased 01 acre 20 guntas of land in Sy. No.42/3 on the southern side. It, therefore, held that Sri Dodda Muniyappa and his son Sri D.Ramaiah sold the southern portion of 01 acre 20 guntas of land in Sy. No.42 in favour of Sri Biliyappa, who is the vendor of the defendant No.1 in terms of the sale

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deed dated 17.06.1971 and thereafter, defendant No.1 purchased the said southern portion of 01 acre 20 guntas of land in Sy. No.42, which was renumbered as Sy. No.42/3. The Trial Court thus held that 01 Acre 20 guntas of land purchased by Sri Chikkamuniyappa in terms of the sale deed dated 29.06.1959 from Sri Krishna Singh and 01 acre 20 guntas of land purchased by defendant No.1 in terms of the sale deed dated 22.05.1978 from Sri Biliyappa, and that both the properties were distinct and different portions of land in Sy. No.42 of Dasarahalli village. Therefore, it held that prima facie , suit schedule

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sites purchased by the plaintiff lay within 01 acre 20 guntas of land in Sy. No.42/3 on the northern side purchased by Sri Chikkamuniyappa and not within 01 acre 20 guntas of land in Sy. No.42/3 on the southern side purchased by Sri Doddamuniyappa and his son Sri D.Ramaiah, predecessors-in-title of defendant No.1. It also held that the site Nos.10 and 14 were located in the middle portion of the entire layout formed in 01 acre 20 guntas which originally belonged to Sri Chikkamuniyappa

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NC: 2024:KHC:10813 MFA No. 375 of 2024

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and therefore, it held that the defendant No.1 could not claim that the suit properties lay within the southern portion of land in Sy. No.42/3 that was purchased by Sri Doddamuniyappa and his son Sri T. Ramaiah on 29.06.1959. However, it held that the question whether the property purchased by the plaintiff lay within the property purchased and owned by the vendor of the defendant No.1 presented a triable case and therefore, held that the possession of the plaintiff needed to be protected until disposal of the suit. Consequently, it allowed the application in terms of the impugned order.

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Being aggrieved by the said order, the defendant Nos.1 to 6 have filed this appeal.

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Learned counsel for the appellants/defendant Nos.1 to 6 submitted that the suit filed by the defendant No.1 in O.S. No.9225/2004 against the predecessor-intitle of the plaintiff - Smt. Smt.Jagadamba Thavare, and

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the developer of the layout - Mr. B.K. Gopalasetty for perpetual injunction was decreed on 13.09.2007. He,

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therefore, contends that the plaintiff having purchased the suit properties from Smt.Jagadamba Thavare, cannot now contend that he is in possession of the suit properties. He further submits that the suit properties purchased by the plaintiff lay within the northern portion of the land in Sy. No.42 which was bifurcated in Sy. No.42/3 and the documents produced before the Trial Court amply established the same.

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Learned counsel for the plaintiff / respondent No.1 on the other hand contended that the Trial Court after considering the documents placed before it, was of the opinion that the plaintiff had made out a prima facie triable case and therefore, it was justified in granting an order of interim injunction. He further contended that the property purchased by the respective predecessors-in-title of the plaintiff and defendant No.1 were two different portions in Sy. No.42 (renumbered as Sy. No.42/3). He contends that what was purchased by the predecessor-intitle of the plaintiff was land lying on the northern portion

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NC: 2024:KHC:10813 MFA No. 375 of 2024

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of Sy. No.42/3 and what was purchased by the predecessor-in-title of the defendant No.1 was the southern portion of the land in Sy. No.42/3. He, therefore, submits that the predecessor-in-title of the plaintiff had formed a layout of residential sites and what was purchased by the plaintiff was two sites lying within the middle portion of Sy.No.42/3 on the northern side, developed by Sri Chikkamuniyappa and Sri B.K. Gopala Setty. He, therefore, contends that the Trial Court was justified in granting an order of injunction so as to maintain status quo of the suit properties until disposal of the suit.

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I have considered the submissions made by the

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learned counsel for the appellants / defendant Nos.1 to 6 and the learned counsel for plaintiff / respondent No.1.

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The documents placed on record before the Trial Court which were also placed before this Court indicated that 01 acre 20 guntas of land on the southern side in Sy. No.42/3 was purchased by the predecessor-in-

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NC: 2024:KHC:10813 MFA No. 375 of 2024

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title of the defendant No.1. The predecessor-in-title of the plaintiff had purchased 01 acre 20 guntas of land in Sy. No.42/3 lying on the northern side. The fact that the suit sites are formed in the property purchased by the predecessor-in-title of the plaintiff is evident from a plan which is placed on record. The defendant No.1 did not dispute the fact that several sites are formed in the land bearing Sy. No.42 that was purchased by the predecessorin-title of the plaintiff. Therefore, the question whether the property purchased by the plaintiff lay within the property purchased by the predecessor-in-title of the defendant No.1 or whether it lay within the property of the predecessor-in-title of the plaintiff is a real question of fact which has to be tried by the Trial Court. Since both the parties are claiming title to the suit properties, in order to maintain status quo of the suit properties, the Trial court was justified in granting an order of injunction restraining the defendants from interfering with the possession of the plaintiff in the suit schedule properties. Since the suit properties are vacant sites, any construction that may be

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NC: 2024:KHC:10813 MFA No. 375 of 2024

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put up by the defendants would definitely injure the plaintiff and also undermine his rights over the suit schedule properties. In that view of the matter, there is no error committed by the Trial Court in restraining the defendants from causing unlawful interference in any manner whatsoever in the plaintiff's peaceful possession and enjoyment over the suit schedule properties till the final disposal of the suit.

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Hence, the appeal lacks merit and is dismissed. However, having regard to the fact that the defendants had filed a suit against Smt. Jagadamba Tavare, the vendor of the plaintiff, and Sri B.K. Gopala Setty in O.S. No.9225/2004, which was decreed in terms of the judgment and decree dated 13.09.2007 passed by the V Additional City Civil Judge, Bengaluru, both the parties are directed not to put up any construction over the suit properties until the disposal of the suit.

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NC: 2024:KHC:10813 MFA No. 375 of 2024

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In view of disposal of this appeal, I.A.

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No.1/2024 for stay does not arise for consideration and

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the same stands disposed off.

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Sd/JUDGE

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SMA List No.: 1 Sl No.: 40

M Kempanna v. Rajith N R

Case brief

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M Kempanna v. Rajith N R

Case brief

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