Dismissed

Smt. K. Pushpavathi v. Sri. Abhilash Bhaskaran

Karnataka HC22 Mar 2024MFA/5071/2023

Case brief

AI extract

What is this about?

Appeal by defendant against interim injunction restraining interference with plaintiffs' possession of suit sites in Sy.No.149, Agara village, Bengaluru. The High Court found triable issues on title and possession and dismissed the appeal, upholding the injunction subject to conditions against construction or parting with possession.

What did the court decide?

Impugned injunction upheld; both parties barred from construction, alteration or transfer of possession pending suit.

Smt. K. Pushpavathi Vs Sri. Abhilash Bhaskaran — Specific Performance | Karnataka HC (2024)

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1 - NC: 2024:KHC:11967 MFA No. 5071 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ MISCELLANEOUS FIRST APPEAL NO. 5071 OF 2023 (CPC)

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BETWEEN:

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SMT. K. PUSHPAVATHI AGED ABOUT 61 YEARS, W/O. KUPENDRA REDDY D/O SRI LATE A.V. RAMAIAH REDDY R/AT NO.1870, 21^ST MAIN 15^TH B CROSS, HSR LAYOUT SECTOR-I, BENGALURU-560102 REPRESENTED BY HER SPECIAL POWER OF ATTORNEY HOLDER SRI. A. BASAVRAJ AGED ABOUT 64 YEARS S/O. LATE A MALKAJAPPA NO.10, 2^ND CROSS, VIDYANAGAR, THANISANDRA, BENGALURU-77. …APPELLANT

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(BY SRI. ABHINAV R, ADVOCATE)

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AND:

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Digitally signed by BS 1. SRI. ABHILASH BHASKARAN RAVIKUMAR AGED ABOUT 38 YEARS Location: S/O. SRI. K. BHASKARAN HIGH R/A NO.149/30 (113) COURT OF KARNATAKA 8^TH CROSS, 20^TH MAIN HSR LAYOUT (SECTOR-1) BENGALURU-560102.

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SRI. AJESH BHASKARAN AGED ABOUT 36 YEARS S/O SRI. K. BHASKARAN R/A NO.149/30 (113) 8^TH CROSS, 20^TH MAIN HSR LAYOUT (SECTOR-1) BENGALURU-560102. RES NO.1 AND 2, REP. BY P.A.H SRI. ANOOP BHASKARAN

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AGED ABOUT 33 YEARS, S/O. SRI.K. BHASKARAN, R/A NO.149/30 (113) 8^TH CROSS, 20^TH MAIN HSR LAYOUT (SECTOR-1) BENGALURU-560102.

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…RESPONDENTS (BY SRI. NANDAKUMAR T.V., ADVOCATE FOR CAVEATOR RESPONDENT NOS.1 AND 2)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 20.06.2023 PASSED ON I.A. NO.1 IN O.S.NO.7398/2022 ON THE FILE OF THE XVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH 16), ALLOWING I.A. NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 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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The defendant in O.S.No.7398/2023 on the file of XVII Additional City Civil and Sessions Judge, Bengaluru has filed this appeal challenging the correctness of an order dated 20.06.2023, by which, the Court granted an order of injunction restraining the defendant from interfering with the possession of the plaintiffs in the suit schedule property.

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The parties shall henceforth be referred to as they were arrayed before the Trial Court.

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NC: 2024:KHC:11967 MFA No. 5071 of 2023

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The suit in O.S.No.7398/2022 was filed for perpetual injunction in respect of four sites bearing Site Nos.29, 30, 35 and 36 situated in Sy.No.149 of Agara village, Begur Hobli, Bengaluru South Taluk. The plaintiffs contended that they acquired the suit property in terms of a gift deed executed

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by their father which was duly registered before the jurisdictional Sub-Registrar on 23.12.2017. They claimed that consequent to such gift deed, the municipal records were transferred to their name and that they were paying the property tax. The plaintiffs claimed that the land in Sy.No.149 measuring 02 acres 05 guntas belonged to A.Gundappa who formed a layout of residential sites in the year 1983-1984 and sold them to different purchasers including the father of the plaintiffs. They contended that their father acquired the suit properties in terms of a sale agreement dated 26.11.1984 by paying the entire sale consideration of Rs.30,000/-. They contended that due to restriction against registration of conveyance of revenue sites, and also in view of the land being notified by the Bengaluru Development Authority, they could not obtain a deed of absolute sale. None the less, they claimed that their family was in peaceful possession and enjoyment of

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the suit properties and that they had constructed a house over it. They contended that since the land was notified by the Bengaluru Development Authority, A.Gundappa executed a power of attorney in favour of their father which was duly attested by the Small Causes Judge, Bengaluru. Thus, they contended that they were in lawful possession and enjoyment of the suit schedule property in their own right. They further contended that A.Gundappa filed a suit in O.S.No.3604/1988, wherein an order of injunction was granted against the Bengaluru Development Authority restraining it from interfering or demolishing the existing construction. Later, the land bearing Sy.No.149 was denotified from acquisition under Section 48(1) of the Land Acquisition Act in the year 2003. The plaintiffs further contend that their father was one of the persons whose name appeared in the list of claimants in LAC No.205/1988 which demonstrated that he had some semblance of right over the suit schedule property. They contended that the defendant claimed to have purchased a larger extent of 35,000 sq.ft. in Sy.No.149 from the children of A.Gundappa and was attempting to interfere with their possession and therefore, they sought for perpetual injunction to restrain the

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defendant from interfering with their possession in the suit schedule property. Along with the plaint, they filed an application under Order XXXIX Rules 1 and 2 of Civil Procedure Code for interim injunction to restrain the defendant from interfering with the suit schedule property.

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The suit was contested by the defendant who denied the averments of the plaint and contended that the suit schedule property did not exist but was fictitious. She contended that the plaintiffs claimed at one breath that their father had executed a gift deed dated 23.12.2017 wherein, he claimed that the suit schedule property was his ancestral property, but in the other, claimed that their father had entered into an agreement with Mr. A.Gundappa and had allegedly agreed to purchase the suit property for a total sale consideration of Rs.30,000/-. Therefore, the defendant contended that the claim of the plaintiffs that their father was the owner of the suit schedule property and that the plaintiffs had become the owners in terms of the gift deed was false and vexatious and untenable. They further contended that there were no documents to justify the formation of the site Nos.29, 30, 35 and 36 in the land bearing Sy.No.149. They further

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claimed that the father of the plaintiffs had filed O.S.No.25570/2010 for specific performance of the agreement of sale dated 26.11.1984 allegedly executed by A.Gundappa. The defendant claimed that she was not made party in the said suit when it was filed, but later was arrayed as defendant No.5. She contended that the boundaries mentioned in the agreement of sale dated 26.11.1984, and the boundaries mentioned in O.S.No.25570/2010 did not correspond with the boundaries mentioned in the present suit and the boundaries mentioned in the gift deed propounded by the plaintiffs. She further contended that the suit filed by the father of the plaintiffs for specific performance was withdrawn unconditionally that too after the trial in the said suit was concluded. Thereafter, the gift deed dated 23.12.2017 was illegally extended in favour of the plaintiffs. The defendant mentioned various circumstances and claimed that those circumstances indicated beyond doubt that the plaintiffs and their father had created documents to lay a claim to the suit property. The defendant also filed objections to the application for interim injunction.

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The Trial Court after hearing the learned counsel for the plaintiffs and the learned counsel for the defendant, allowed the application in terms of the impugned order on the ground that the documents placed on record indicated that A.Gundappa had executed an agreement of sale coupled with the power of attorney in favour of the father of the plaintiffs and had handed over possession of suit property. It also held that the name of the father of the plaintiffs was mentioned in the list of claimants in LAC No.205/1988. It also held that KEB bills, photographs and Katha extract as well as the tax paid receipts produced by the plaintiffs prima facie established that the father of the plaintiffs was in possession of the suit property and had constructed a house thereon and that after the death of A.Gundappa, the defendant had obtained a sale deed from the legal representatives of A.Gundappa. Therefore, it held that the case presented triable issues and in order to maintain the status-quo of the property, the possession of the plaintiffs needs to be protected. Consequently, it allowed the application and granted an order of injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the plaintiffs in the suit schedule property.

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Being aggrieved by the said order, the defendant is

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before this Court in this appeal.

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The learned counsel for the defendant contended

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that:

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(i) the suit for bare injunction was not maintainable and the plaintiffs were required to seek for declaration of their title to the suit schedule property;

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(ii) the father of the plaintiffs had filed suit in O.S.No.25570/2010 for specific performance of the alleged agreement of sale which was not pursued and was withdrawn unconditionally and therefore, he did not derive any right, title or interest in the suit schedule property. Hence, he could not have conveyed the suit schedule property to the plaintiffs;

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(iii) that there was discrepancy in the boundaries mentioned in the agreement that was filed in the suit for specific performance as well as the boundaries mentioned in the gift deed executed in favour of the plaintiffs;

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(iv) that the father of the plaintiffs had addressed a notice to the Deputy Commissioner against

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converting the land for non-agricultural purposes and along with the notice, he had enclosed an agreement which did not correspond with the agreement filed in the suit for specific performance;

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(v) The document produced by the plaintiffs along with the plaint did not relate to the suit properties and did not establish that any building was constructed over the suit property. There was complete lack of good faith on the part of the plaintiffs and therefore, the discretionary relief of injunction could not have been granted in their favour;

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(vi) the Trial Court while considering the application filed for interim injunction did not peruse the material produced by the defendant to check whether the plaintiffs had made out a prima facie case and whether grant of an order of injunction would cause hardship to the plaintiffs or to the defendant;

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(vii) that the khatha produced by the plaintiffs themselves did not indicate existence of any structure over the suit property.

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Per contra, the learned counsel for the plaintiffs

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contended that the fact that A.Gundappa had executed an

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agreement of sale in favour of their father was evident from the list of claimants forwarded by the Land Acquisition Officer to the Reference Court in LAC No.205/1988. He submits that this list of claimants was forwarded to the Reference Court in the year 1984. He therefore, submitted that there is some evidence to show that at an undisputed point of time, the father of the plaintiffs had some semblance of right and same corresponded with the agreement of sale and power of attorney executed by A.Gundappa. He submitted that from the day the father of the plaintiffs entered into an agreement of sale with A.Gundappa it was he, who was in possession and enjoyment of the suit property and that he had constructed a building thereon on and he was residing along with his family and he therefore, contends that the possession of the father of plaintiffs has been continuous and he thereafter executed a gift deed in favour of the plaintiffs. He submits that the question whether the plaintiffs are in possession or not and whether the father of the plaintiffs had any title to convey the suit property to the plaintiffs or not, are all questions of fact which is to be decided after a full fledged trial. He further contended that though he had withdrawn the suit filed for specific performance, since

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there was no revocation of the power of attorney, his father continued to be the power of attorney and in exercise of the power vested under the power of attorney, he became the absolute owner of the suit property and consequently, had conveyed the suit property in favour of the plaintiffs. He further contended that the property purchased by the father of the plaintiffs lay abutting 8^th cross road, while the property purchased by the defendant was 35,000 sq.ft. in Sy.No.149 which lay within 7^th and 9^th cross road, which is evident from the sketch attached to the sale deed executed by the children of A.Gundappa in favour of the defendant. He submitted that in the said sketch, 8^th cross, road is conspicuously not shown which gives an impression that the defendant had not purchased any property abutting 8^th cross road. He therefore, submits that the property purchased by the plaintiffs, father of the plaintiffs as well as the defendant are different properties and therefore, the question whether the defendant has any semblance of right, title or interest in the suit property is a question of fact which needs to be tried by the Trial Court.

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I have considered the submissions made by the learned counsel for the defendant and learned counsel for the plaintiffs.

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The plaintiffs and the defendant seem to be warring over a site measuring 60 x 80 feet formed in Sy.No.149 of Agara village, Begur Hobli, Bengaluru South Taluk. While the plaintiffs contended that their father had entered into an agreement of sale in respect of the aforesaid site with Mr. A.Gundappa and that Mr. A.Gundappa had executed a power of attorney in respect of those sites, the defendant contends to the contrary and claimed that such a sale agreement was never executed by A.Gundappa. The father of the plaintiffs had filed a suit for specific performance of said agreement of sale and said suit was withdrawn unconditionally. It is only thereafter, that the gift deed in favour of the plaintiffs is brought about. At the very outset, the title of the plaintiffs seems doubtful as the father of the plaintiffs claimed in the gift deed dated 23.12.2017 that the suit property was his ancestral property, but no record of whatsoever nature was produced before the Trial Court to establish that the suit property was the ancestral property of the father of the plaintiffs.

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Be that as it may, the fact that the father of the plaintiffs was shown as one of the persons in the list of claimants forwarded to the Reference Court in year 1984 makes it probable that he had some interest in the suit property. However, since the father of the plaintiffs had unconditionally withdrawn the suit for specific performance, the question whether an agreement was executed and whether such an agreement was enforceable or not has now lost significance. It is relevant to note that the plaintiffs have claimed that A. Gundappa had executed a power of attorney to convey the suit property by sale or gift. The plaintiffs claim that they are in possession of the suit property under the gift deed executed by their father. Therefore, the question whether this power of attorney was validly executed or was genuine or not has to be decided after a trial. The question whether the gift deed dated 23.12.2017 was executed based on such gift deed had to be decided, after a trial, by considering the conduct of A. Gundappa and father of plaintiffs. Certain photographs are produced before the Trial Court which indicate the existence of a house over the suit schedule property. Hence, the status of the said property had to be maintained until the out come of

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the suit, lest, there could be destruction of the evidence about the existence of a structure on the suit property, if at all it does. The Trial Court after going through the records felt that

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a triable case was made out by the plaintiffs and this Court does not see any reason to disbelieve or doubt the finding of the Trial Court and hence does not warrant interference in this appeal.

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In that view of the matter, the appeal is dismissed

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and the impugned order dated 20.06.2023 passed in O.S.No.7398/2022 by the Trial Court is upheld. However, this order is subject to the condition that both plaintiffs and defendant shall not put up any construction or alter the existing construction over the suit property. They shall also not part with possession of the suit property in favour of any third party until the disposal of the suit.

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Sd/JUDGE

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List No.: 1 Sl No.: 26

Smt. K. Pushpavathi v. Sri. Abhilash Bhaskaran

Case brief

What is this about?

What did the court decide?

Smt. K. Pushpavathi v. Sri. Abhilash Bhaskaran

Case brief

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