Disposed

Sakamma v. Smt Venkatalakshmi

Karnataka HC9 Aug 2024MFA/4746/2024

Case brief

AI extract

What is this about?

Plaintiffs claiming restored granted land challenged rejection of interim injunctions restraining purchasers from alienating or changing nature of layout plots. The High Court found a prima facie case and risk of multiplicity of litigation, restrained creation of third-party rights, allowed beneficial use and leasing subject to suit outcome, and disposed of the appeal.

What did the court decide?

Defendants 19, 22-24 directed not to create third-party rights over suit B schedule property; may use/rent/lease with undertaking subject to suit result.

Sakamma Vs Smt Venkatalakshmi — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:32195 MFA No. 4746 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO.4746 OF 2024 (CPC)

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BETWEEN:

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SMT. SAKAMMA, W/O. LATE MUNIYAPPA, AGED ABOUT 66 YEARS,

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SMT. SUJATHA, D/O. LATE MUNIYAPPA, AGED ABOUT 47 YEARS,

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SRI. HARISH KUMAR, S/O. LATE MUNIYAPPA, AGED ABOUT 46 YEARS,

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SMT. GIRIJA, D/O. LATE MUNIYAPPA, AGED ABOUT 38 YEARS,

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Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA

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SRI. CHANDRESH, S/O. LATE MUNIYAPPA, AGED ABOUT 35 YEARS,

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ALL ARE RESIDING AT NO.5/1, 2ND CROSS, M. GANDHINAGAR, MUNNEKOLALA, MARATHAHALLI, BENGALURU-560037.

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…APPELLANTS

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(BY SRI. VIJAYA KUMAR K., ADVOCATE)

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AND:

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SMT VENKATALAKSHMI, D/O. LATE PILLAPPA, W/O. VENKATESH, AGED ABOUT 49 YEARS,

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SMT. NAGARATHNA, D/O. LATE PILLAPPA, W/O. KRISHNAPPA, AGED ABOUT 47 YEARS,

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RESPONDENT NOS.1 AND 2 ARE RESIDING AT NO.5, 2ND CROSS, M. GANDHI NAGAR, MUNNEKOLALA, MARATHAHALLI, BENGALURU – 560 037.

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SMT. GOWRAMMA, D/O. LATE CHIKKAVENKATAPPA, AGED ABOUT 53 YEARS,

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SMT. MUNITHAYAMMA, D/O. LATE CHIKKAVENKATAPPA, AGED ABOUT 51 YEARS,

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SMT. VENKATESHAMMA, D/O. LATE CHIKKAVENKATAPPA, AGED ABOUT 45 YEARS,

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SMT. RAJAMMA, D/O. LATE CHIKKAVENKATAPPA, AGED ABOUT 42 YEARS,

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SRI. MANJUNATH @ GOPALA KRISHNA, S/O. LATE CHIKKAVENKATAPPA, AGED ABOUT 39 YEARS,

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RESPONDENT NOS.3 TO 7 ARE RESIDING AT NO.161, 5TH CROSS, PANATHURU DINNE, PANATHURU POST, BENGALURU – 560 103.

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SMT. AMBIKA, D/O. LATE HARISH @ KODANDA, GRAND DAUGHTER OF LATE BODAPPA, AGED ABOUT 20 YEARS,

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SRI. VIGNESH, S/O. LATE HARISH @ KODANDA,

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GRAND SON OF LATE BODAPPA, AGED ABOUT 19 YEARS,

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SRI. KESHAVA, S/O. LATE BODAPPA, AGED ABOUT 45 YEARS,

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SMT. ANNAPOORNA, D/O. LATE BODAPPA, AGED ABOUT 39 YEARS,

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SMT. HEMAVATHI, D/O. LATE BODAPPA, AGED ABOUT 35 YEARS,

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SMT. SAMPOORNA, D/O. LATE BODAPPA, AGED ABOUT 33 YEARS,

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SRI. PRATHAP, S/O. LATE BODAPPA, AGED ABOUT 31 YEARS,

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SMT. SAVITHRI, D/O. LATE BODAPPA, AGED ABOUT 28 YEARS,

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RESPONDENT NOS.8 TO 15 ARE RESIDING AT NO.19, 1ST CROSS, L.N.PURA, BEHIND PARIMALA WINSOME APARTMENT, KUNDALAHALLI GATE, MARATHAHALLI POST, BENGALURU – 560 037.

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SRI. VENKATAPATHI, S/O. LATE LAKSHMAIAH, AGED ABOUT 76 YEARS, R/A NO.4, 2 CROSS, M. GANDHINAGAR, MUNNEKOLALA, MARATHAHALLI, BENGALURU – 560 037.

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SRI. SURESH KUMAR, S/O. LATE MUNIYAPPA, AGED ABOUT 31 YEARS, R/A 2ND CROSS, M. GANDHI NAGAR, MUNNEKOLALA, MARATHAHALLI, BENGALURU – 560 037.

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SRI. N. CHANDRASHEKAR, S/O M. NARAYANA REDDY, AGED ABOUT 54 YEARS, R/AT NO.113, M.N.R. BUILDING, NEAR LAKSHMI NARAYANA TEMPLE ROAD, MUNNEKOLALA, MARATHAHALLI, BENGALURU – 560 037.

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SRI. JAYESH THAKER, S/O. AMRITH LAL THAKER, AGED ABOUT 51 YEARS, R/A NO.620/20, 5TH MAIN ROAD, 4TH BLOCK, RAJAJINAGAR, BENGALURU – 560 010.

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V. BALAIAH NAIDU, S/O. V. VENU NAIDU, AGED ABOUT 53 YEARS,

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SMT. SUSHMA V. NAIDU, D/O. V. BALAIAH NAIDU, AGED ABOUT 29 YEARS,

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RESPONDENT NOS.20 AND 21 ARE R/A.NO.118, 10TH CROSS, MANJUNATH LAYOUT, MUNNEKOLALA, MARATHAHALLI, BENGALURU – 560 037.

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SRI. RAJASHEKAR. E.S., S/O. E. SHANKAR NAIDU, AGED ABOUT 46 YEARS, R/A NO.309, 4TH MAIN, 7TH CROSS, SRINIVAS NAGAR, BENGALURU – 560 050.

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SRI. ARUN JAIN, S/O. J. KASTURCHANDJI, AGED ABOUT 52 YEARS, R/A.NO.21, 1 MAIN ROAD, MOTHI NAGAR, BENGALURU – 560 032.

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SRI. DEVAKUMAR. R. S., S/O. SRINIVASULU NAIDU, AGED ABOUT 49 YEARS, R/A NO.1516, 9TH B MAIN, 6TH CROSS, ESN PARADISE, RAMA MANDIRA ROAD, SRINIVAS NAGAR, BENGALURU – 560 050.

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SRI. SRINIVAS.G, S/O. GOVINDA REDDY, AGED ABOUT 53 YEARS,

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SRI. RAMESH, S/O. GOVINDA REDDY, AGED ABOUT 55 YEARS,

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SRI. MANJUNATH, S/O. GOVINDA REDDY, AGED ABOUT 59 YEARS,

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SMT. BHAGYA, D/O. GOVINDA REDDY, AGED ABOUT 57 YEARS,

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SMT. G. SHYAMALA, D/O. GOVINDA REDDY, AGED ABOUT 55 YEARS,

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RESPONDENT NOS.25 TO 29 ARE RESIDING AT NO.422, NEAR AXIS BANK, MARATHAHALLI, BENGALURU – 560 037.

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SMT. LAKSHMAMMA, W/O. LATE R. NARAYANA REDDY, AGED ABOUT 70 YEARS,

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SRI. N. VENKATESH REDDY, S/O. LATE R. NARAYANA REDDY, AGED ABOUT 40 YEARS,

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RESPONDENT NOS.30 AND 31 ARE R/A CHENNAKESHAVA NILAYA(CKB), NEAR CANARA BANK, MARATHAHALLI, BENGALURU – 560 037.

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…RESPONDENTS

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(BY SRI. D.P. MAHESH ADVOCATE FOR CAVEAT RESPONDENT NOS.19, 22, 23 AND 24;

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VIDE ORDER DATED 09.08.2024 R1 TO 18, 20, 21 AND 25 TO 31 DISPENSED WITH)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 30.05.2024 PASSED ON I.A.NOS.1 AND 2 IN O.S.NO.6090/2023 ON THE FILE OF THE V ADDITIIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-13), REJECTING I.A.NOS.1 AND 2 FILED UNDER ORDER XXXIX RULE 1 AND 2 READ WITH SECTION 151 OF CPC AND ETC.

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THIS APPEAL, COMING ON FOR ORDERS, 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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The present appeal is filed aggrieved by the order passed in I.A.Nos.1 and 2 in O.S.No.6090/2023 dated 30.05.2024 by the V Addl. City Civil and Sessions Judge, Bengaluru, the petitioners/plaintiffs are before this Court.

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The plaintiffs have filed the suit seeking declaration and

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for delivery of vacant possession of the B schedule property to the plaintiffs and further to declare that the plaintiffs are having

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1/5^th share in the A schedule property and effect the partition and separate possession between the plaintiffs and defendant Nos.1 to 17 by metes and bounds as per Section 54 of CPC and also the sale deeds are not binding on the plaintiffs. In that they have filed these two I.As., I.A.No.1 is not to alienate and I.A.No.2 is not to change the nature of the suit schedule property. Both the I.As were dismissed. It is the case of the plaintiffs that the plaint A schedule property was granted in favour of one late Lakshmaiah subject to non-alienation clause for a period of 15 years. On 14.08.1967, Lakshmaiah sold the property in favour of one D. Ramachandra Reddy. Then, the said Ramachandra Reddy had sold the property by document dated 08.01.1978 in favour of M.R. Rajagopal Reddy. Thereafter, M.R. Rajagopal Reddy sold the property on 28.10.1992 in favour of R. Narayana Reddy. Thereafter, the same was mutated in the name of R. Narayana Reddy. As the said alienation is in violation of conditions of the grant, then the plaintiffs who are the legal heirs of Late Lakshmaiah had filed a petition under Section 5A of the KSC ST (Prohibition of Transfer of certain lands) Act, 1978 and later the said petition filed by them came to be allowed. Aggrieved thereby, the vendors of

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the defendants in the present suit had filed W.P.No.21583/2009 and by order dated 08.07.2011 the same came to be dismissed. Aggrieved thereby they have carried this matter in appeal by filing W.A.No.15234/2011 that again came to be dismissed by order dated 02.12.2011. The Division Bench while dismissing the said petition had observed that they find no reason to change their opinion as articulated in Chandra Naika’s case and held that the moratorium of transfer was unfair, illegal and accordingly, the appeal is dismissed. When the grandfather of the plaintiff was granted one acre of land in Sy.No.37/12, on the same day the one Muniyamma was granted another one acre land in Sy.No.37/11. Both of them have sold the property to Rajagopala Reddy on the same day and finally Narayan Reddy died intestate, leaving behind Lakshmamma and his son N. Venkateshwara Reddy as his legal heirs. Ramesh and Srinivas LRs have filed a partition suit in O.S.No.6716/1999 in respect of Sy.Nos.37/11 and 37/12 as per the compromise decree dated 15.07.2005. Sy.No.37/11 had fallen to the share of Ramesh, Srinivas, Manjunath, Bhagyamma and Shyamala.

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These people are the Writ petitioners before the Court. Then, Ramesh and others have executed a sale deed 10.06.2003 in

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favour of one Chandrasekhar that is defendant No.18. Defendant No.18 obtained conversion and formed 18 sites in Sy.No.37/12 and 13 sites in Sy.No.37/11. According to defendant Nos.19, 22 to 24, they have purchased the sites formed in Sy.No.37/11 by sale deed dated 17.10.2018, 11.10.2018, 07.12.2018, 18.12.2018 and 25.07.2019. The defendants have filed a suit for permanent injunction in O.S.No.4658/2023 and O.S.No.5860/2022 against the plaintiffs and they have obtained an interim injunction in the said suit. It is the case of the appellants/plaintiffs that after the injunction order is passed, then they have come to know about all these things and they have filed the present suit for declaration, partition, cancellation of the sale deeds and recovery of possession. Now, the whole dispute between the parties is, according to the plaintiffs, the property that is Sy.No.37/12 which is one acre, the defendants that is the respondents herein are in possession of the property by virtue of sale deeds where a layout is formed and they have purchased the plot from the said layout. Now, plaintiff is seeking a direction to the purchasers, not to alienate or not to change the nature of the properties.

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Learned counsel appearing for the appellants/plaintiffs submits that as per the sale deed executed in favour of the defendants, the land of the defendants is in Sy.No.37/11 and as per the boundaries Sy.No.37/12 is on the western side of Sy.No.37/11. As per the layout, according to them, they have purchased the B schedule properties in the suit. The Trial Court while dismissing the application filed by the plaintiffs had observed that the plaintiffs have not disputed the possession of defendant Nos.19 to 24 over their respective properties described under suit B Schedule property. Further, the plaintiffs have also not much disputed on the ongoing construction work on some portion of the B schedule property and have completed the construction in the remaining portion of the B schedule property and defendant Nos.19 to 24 have been in possession of the property. They have completed the permanent structure. If once defendant Nos.19 to 24 have failed to established the righteous title over their respective properties, it would shut down the claim of equity by defendant Nos.19 to 24 over the B schedule property. Further, perusal of the case record, defendant Nos.19 to 24 have already initiated the legal proceedings against the present plaintiffs by filing two

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suits and also an ex-parte temporary injunction has been granted against the plaintiffs. Suits which are initiated by defendant Nos.19 to 24 are all previously instituted suits. If they are asserting their right to the property, the plaintiffs would have gone before the said Court by filing an appropriate application. When one of the Jurisdictional Court have restrained the present plaintiffs of the suit by granting injunction in favour of defendants as to not to disturb the possession of them, how another one of the Jurisdictional Court can restrain the defendant by directing not to change the nature or to restrain defendant Nos.19 to 24 from alienating the B schedule property. The plaintiffs have not come before the Court with clean hands. On that ground also the plaintiffs are not entitled for any of the reliefs sought in the applications. The Court felt that the plaintiffs have failed to show their prima facie case, balance of convenience and irreparable loss and accordingly, dismissed the petition.

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Learned counsel appearing for the appellants/plaintiffs submits that the right of the plaintiffs as far as Sy.No.37/12 is upheld by the Division Bench of this Court. They have nothing to do with Sy.No.37/11. There is also no dispute about the fact

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that both Sy.No.37/11 and Sy.No.37/12 are clubbed together and a layout was formed. In the said layout, as admitted by the learned counsel for the defendants, they are on the western side and there are two plots in the line, on the western side plot, they are claiming to have purchased. Learned counsel draws attention of the Court to the sale deeds of the defendants wherein Sy.No.37/12 is shown on their western side. He submits that even if there is a dispute raised by the defendants, they should have been on the other side, but not on the western side. Being on the western side, it clearly shows that the plots purchased by the defendants are in Sy.No.37/12, but not in Sy.No.37/11. Now, if they change the nature of the property and if third party rights are created, then, it would lead to multiplicity of proceedings and also it would be very difficult for the defendants. Even after they get a relief from the Court, they would not be able to enjoy the fruits of the said decree. He submits that in the injunction suit, when an interim injunction is granted, then they came to know about all these proceedings and as the plaintiff is claiming title to the property, has filed a comprehensive suit for declaration. Unless the injunction as prayed for is granted, it would cause irreparable

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loss to the plaintiffs and all these aspects were not considered by the Trial Court.

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Learned counsel appearing for the respondents/ defendant Nos.19, 22 to 24 submits that they have nothing to do with Sy.No.37/12, they are only concerned with Sy.No.37/11. Even as per their sale deed, their property is in Sy.No.37/11. Already they have an order of injunction in their favour restraining the plaintiffs from interfering with their peaceful possession and enjoyment of the property with regard to the very same suit schedule property by a competent civil court in a suit filed by them. The plaintiff in this suit had not taken any steps to get the said interim injunction granted by the Trial Court vacated. Now, he has filed another suit and sought for the relief. According to them, they have already raised construction and at this point of time, if any order that is granted by the Court, would cause lot of prejudice to the defendants. It is submitted that they are very much in possession of Sy.No.37/11 and he submits that in fact that boundaries are wrongly mentioned, for that reason he relied on a compromise deed and According to him, on the compromise deed on the eastern side of their land is Sy.No.37/12, but not

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on the western side. It is submitted that the order passed by the Court is perfectly legal and valid and no interference is called for.

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In response to that, learned Counsel for the plaintiffs submits that when they are relying on the sale deed for asserting their right and title to the property now, it is not open for them to contend that the boundaries that are mentioned in the sale deed are wrong and the boundaries that are mentioned in the compromise decree are right. If at all that is so, they ought to have sought the clarification or the correction to be carried out in the sale deed. Now, at this hour, it is not open for the defendant to contend in those lines.

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Having heard the learned counsels on either side, perused the entire material on record. The title to the property as far as Sy.No.37/12 and 37/11, there is no dispute. Sy.No.37/11 is allotted to one Muniyamma and Sy.No.37/12 is allotted to one Lakshmaiah. Both of them have sold the properties to the very same vendors that is Ramachandra Reddy, Rajagopal Reddy and Narayana Reddy. Now, the persons who have purchased both the lands have formed a

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joint layout in respect of Sy.No.37/12 and 37/11. The Hon’ble Division Bench of this Court had upheld the order of the primary authority with regard to the sales wherein as there is no clause of alienation for a period of fifteen years, the alienation that was made was held to be bad and all the sale deeds were set aside. By that time, the Division Bench had affirmed the orders of the primary authority, the layout was formed. According to the defendants, in the year 2013 layout is formed, according to the plaintiffs, the layout is formed in the year 2018. It is an undisputed fact that the layout in respect of two acres was formed. According to the defendants, they have purchased only in Sy.No.37/11 and he has placed before this court the said map and as per the plot numbers they have mentioned that they are on the western side and as per the sale deed, the Sy.No.37/12 is on to the western side of Sy.No.37/11. Now, on the very same case that is put forth by the defendants, on the face of it, it appears that the plots are in Sy.No.37/12. The contention of the defendants with regard to the sale deed, the boundaries, the compromise decree are concerned, this Court is not inclined to go into those issues as they are asserting their title as per the sale deed. Now, by way

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of all this, the plaintiffs could show that he has a Prima Facie case. Then, coming to the balance of convenience and irreparable loss, they have already started construction and they have completed the construction. Now, no order is passed restraining the defendants, if all the properties are sold away, the people who are purchasing the property would also have to face the consequences and it would lead to multiplicity of litigation. Then, coming to the injunction granted by the Court against the plaintiffs is concerned that injunction is not to interfere and now, the order that is going to be passed by this Court, will nowhere come in the way of that order and it is also submitted before this Court that the plaintiffs are taking steps to get the matter transferred and clubbed with the present suit and to lead a common evidence. Safeguarding the interest of the plaintiff as well as the defendant, this Court deems it appropriate to pass the following,

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ORDER

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i. The respondents/defendant Nos.19, 22 to 24 are directed not to create any third party rights in respect to the suit B schedule property and at the same time, it is made clear that as the

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construction is already completed, the

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respondents/defendant Nos.19, 22 to 24 can use the property in any manner which is beneficial to

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them. He can rent or lease the property with a clause that it is subject to the result of the suit and the tenant/lessee shall abide by the outcome of the suit and such an undertaking should be obtained from the tenant.

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