Disposed

Smt Yamuna M R v. Sri Nagaraju T

Karnataka HC5 Sept 2024MFA/5506/2024

Case brief

AI extract

What is this about?

Plaintiff sought temporary injunctions restraining defendants from alienating suit property and from further construction in a title dispute over land in Halagevaderahalli village. Trial Court had dismissed both applications. On appeal, since construction was complete and defendants undertook not to alienate until disposal of the suit via memo, one application was dismissed as infructuous and alie

What did the court decide?

Directions restraining respondents from alienating the suit schedule property till disposal of the suit; IA No.11 dismissed as infructuous.

Smt Yamuna M R Vs Sri Nagaraju T — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:36556 MFA No. 5506 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO. 5506 OF 2024 (CPC)

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BETWEEN:

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SMT. YAMUNA M.R W/O B.P.VIJAYA SHANKAR, AGED ABOUT 48 YEARS, R/AT NO. 406, PATTANAGERE, RAJARAJESHWARI NAGARA, BENGALURU – 560 098.

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…APPELLANT

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(BY SRI. SHARATH S GOWDA, ADVOCATE)

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AND:

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Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA

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SRI. NAGARAJU.T, S/O T.RAMACHANDRA NAIDU, AGED ABOUT 63 YEARS, R/AT NO.171, 4^TH CROSS, BKS III STAGE, BHUVANESHWARI NAGAR, BENGALURU – 560 098.

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SRI. KARTHEEK.T S/O NAGARAJU T., AGED ABOUT 26 YEARS, R/AT NO. 68, 3^RD MAIN, HILL VIEW GARDEN, THURAHALLI, UTTARAHALLI, BENGALURU – 560 061.

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M/S. G.D. DEVELOPERS, A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT NO. 16/1, 242,

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4^TH CROSS, NANDAKUMAR LAYOUT,

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NC: 2024:KHC:36556 MFA No. 5506 of 2024

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UTTARAHALLI HOBLI, BENGALURU – 560 061.

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REPRESENTED BY ITS PARTNERS 1. SRI. V. DEVASHEKAR NAIDU S/O SRI. SRINIVASALU NAIDU

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SRI A GOPINATH, S/O SRI. A. RAGHAVA NAIDU

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…RESPONDENTS

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(BY SRI. S.S. NAGANAND, SR. COUNSEL FOR SRI. C.H. SRINIVAS FOR R1)

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THIS MFA FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DT.14.08.2024 PASSED ON IA NO.10 IN O.S.NO.577/2023 ON THE FILE OF THE XII ADDITIONAL CITY CIVIL JUDGE, (CCH NO.27) BENGALURU, DISMISSING IA NO.10 FILED U/O.39 RULE 1 AND 2 R/W SEC.151 OF CPC.IN TIME.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 05.09.2024, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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CAV JUDGMENT

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Aggrieved by the order passed in I.A.Nos.10 and 11 in O.S.No.577/2023 by the XII Addl. City Civil and Sessions Judge, Bengaluru, the appellant/plaintiff is before this Court.

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The plaintiff herein had filed a suit seeking a declaration that the plaintiff is the absolute owner of the suit A schedule property, seeking a consequential direction to the

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defendants to demolish the construction put up by the defendants in suit A schedule property and to deliver the vacant possession of the property to the plaintiff at the cost of defendant and further, seeking direction to the defendants to pay damages at the rate of Rs.5000/- per month for the illegal occupation of suit A schedule property till the date of delivery of possession of the property to the plaintiff. It is the specific case of the plaintiff that the plaintiff is the absolute owner and he is in possession and enjoyment of the site bearing Nos.4 and 5 acquired under a registered gift deed dated 11.11.2020. Originally the land bearing Sy.No.242/1 measuring 2 acres, 29 guntas situated at Halagevaderahalli Village, Kengeri Hobli, Bangalore South Taluk belong to one Fiaz Ahmed Khan. The said Fiaz Ahmed Khan purchased the agricultural land property from its earlier owner i.e., one S. Amruthlingam vide registered sale deed dated 27.09.1958. In all the revenue records, the name of Fiaz Ahmed Khan is mutated. It is stated that the land was an Inam land and on the application made by Fiaz Ahmed Khan, the Special Deputy Commissioner for Inam Abolition, Bangalore has registered the name of Fiaz Ahmed Khan as an occupant of the land under section 9 of the Mysore (Personal

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and Miscellaneous) Inams Abolition Act in case No.151/59-60. Thereafter, the said Faiz Ahmed Khan sold the agricultural land property bearing Sy.No.242/1 of Kengeri Hobli, Bangalore South Taluk to Shashikanth Rao and M.R. Deepak for valuable consideration and duly executed a sale deed in favour of them vide document dated 26.07.2011 at the office of Sub Registrar, Rajarajeshwari Nagar, Bangalore. Thereafter, the Khatha was changed in the name of Shashikanth Rao and M.R.Deepak and the revenue authorities have entered their name in the RTC’s and mutation entries in the mutation register were changed in their name. After that they have applied for the conversion of the agricultural land into non-agricultural land before the Deputy Commissioner, Bangalore South Taluk. After proper verification by the Deputy Commissioner, he has passed an order for the conversation of land from agriculture to nonagriculture by proceedings dated 24.07.2020. Thereafter, Shashikanth Rao and M.R. Deepak has executed a registered sale deed in favour of the husband of the plaintiff in respect of 18 guntas of land dated 12.08.2020. After purchasing 18 guntas of land he has formed residential sites on his property. After forming residential sites in 18 guntas of land the husband

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of the plaintiff has executed a registered gift deed in favour of plaintiff in respect of site bearing Nos.4 and 5. After the registered gift deeds are executed in favour of the plaintiff the revenue documents are being transferred to the name of the plaintiff. It is her case that she has been in possession and enjoyment of the suit A schedule property without any hindrance from anybody. The plaintiff was forced to file a suit against the defendant for the relief of permanent injunction in O.S.No.7728/2022 on the file of the Additional City Civil and Sessions Judge at Bangalore. In the said suit, the plaintiff had also filed an interlocutory application for the relief of temporary injunction. Thereafter, the defendants herein have appeared before the Court, filed the vakalath and statement of objections and also the defendants have filed an application under Section 7 Rule 11(a) and (d) of CPC for rejection of the plaint. After hearing the parties, the Trial Court had rejected both the applications filed by the plaintiff for the relief of temporary injunction and the application filed by the defendant for the relief of rejection of the plaint. In the said suit, it is the case of the defendant that in respect of this property, a sale deed is executed by one Smt. N Jayanti by sale deed dated

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13.02.2003. She had acquired the site bearing No.509 formed in the 5th phase of Vishwabharathi Housing Complex Layout, Sachidananda Nagar, Halagevaderahalli, Kengeri Hobli, Bangalore South Taluk measuring east to west 60 feet and north to south 40 feet. The said property is referred to as suit B schedule property. Smt. Jayanti has acquired the site by way of a sale deed wherein it is mentioned that the vendor society is the absolute owner who is in possession and enjoyment of the area called Vishwabharathi Housing Complex layout measuring about 63 acres bearing Sy.Nos.212, 213, 238, 240, 241, 242 and other survey numbers of Halagevaderahalli Village, Kengeri Hobli which is classified as residential area in the comprehensive development plan prepared with the planning authority, vide order dated 12.10.1984. It is their case that the Vishwabharathi Housing Society has approached the government requesting to acquire the land situated at Halagevaderahalli Village for formation of layout for the benefit of the members of the society. Accordingly, the government had issued a preliminary notification under Section 4(1) of the Land Acquisition Act. In the said notification, the land acquisition officer has not shown the defendant’s vendor or

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Vishwabharathi Housing Building Cooperative Society as an Anubhavadar of Sy.No.242/1. The society has deposited the amount for the purpose of acquiring the land. Thereafter, the government has not passed the final notification. Subsequently, the said society filed a Writ Petition No.18584/1989 before this Court against the State government and this Court has quashed the preliminary notification and directed the government to refund the amount deposited by the society. Against order passed in WP.No.18584/1989, the Vishwabharathi Housing Building Cooperative society Limited has challenged the same in W.A.No.8766/1986 and the said Writ appeal was also dismissed by the Division bench by order dated 14.12.1996. In terms of the said order, the society has executed an indemnity bond in favour of the government and the Special Land Acquisition by office memorandum dated 16.07.1998 has ordered to refund the amount deposited by the society and accordingly, the said amount was refunded to the society. It is also stated that the defendant’s vendor, the Vishwabharathi House building Co-operative Society has given a paper publication stating that they have not taken any documents from original owners and society has no right to execute the

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sale deeds in favour of its members and also the members are not in possession of any piece of land in Sy.No.242/1. It is the case of the plaintiff that there was no transfer of ownership from the land owners to the alleged society nor the acquisition of land under the Land Acquisition Act was completed. It is stated that under those circumstances, the sale deed executed with the erstwhile office bearers is bad in law and does not confer any right or title to the site owners. It is also stated that on the basis of a fictitious document, the defendant has obtained the false plan/license and katha in his favour for the purpose of constructing the building on the property that belongs to the plaintiff herein. The defendant’s vendor has no marketable right, title or possession to execute the sale deed in favour of the defendant in respect of the alleged property. It is stated that in the guise of the judgment and decree passed in O.S.No.2236/2013, the defendants herein have trespassed into the plaintiff’s property. But the defendants have lodged a police complaint against husband of the plaintiff and also one Sri. Shashikanth Rao, who is the vendor of the plaintiff’s husband. According to the plaintiff, defendant is a stranger to the suit

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NC: 2024:KHC:36556 MFA No. 5506 of 2024

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schedule property and without any manner of right and title, he has been interfering with their possession.

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The defendants have filed their written statement stating that they are the absolute owners and they are in possession of the suit B schedule property which is carved out of the land measuring 2 acre, 11 guntas excluding Karab of 18 guntas is Sy.No.242 of Halagevaderahalli Village, Kengeri Hobli, Bangalore Taluk. The defendants have purchased a property from Smt. Jayanti under the registered sale dated 13.02.2003 for valuable sale consideration. The katha of the suit schedule B property stands in his name and he has been paying taxes to the concerned department regularly. Subsequent to purchase of the suit B schedule property, the defendant had constructed a small house and compound wall around the same and having a electricity connection and water connection to the same and has been paying the bill to the concerned department. Ever since the date of purchase they have been in continuous possession of the property. Defendant No.1 had executed a gift deed in favour of defendant No.2 dated 27.01.2023 by delivering the physical possession. Thereafter, katha was transferred in the name of the son. The defendants have denied

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the title of the plaintiff to the property. It is their case that the Faiz Ahmed Khan has executed a GPA dated 10.02.1985 in favour of Vishwabharathi Housing Building Cooperative Society with regard to his land in Sy.No.242/1 and had never challenged formation of the residential layout and Shashikanth Rao and M.R Deepak were never in possession of any part of the land. In that event, the submission of the plaintiff that she is in possession of the property is without any basis. Already an injunction is granted against the vendor of the plaintiff and an appeal is pending before this Court. It is stated the defendant and his vendor have been in uninterrupted possession of the suit B schedule property for more than 20 years having purchased the same under the registered sale deed dated 13.02.2013. The suit of the plaintiff for recovery of the possession of the imaginary suit A schedule property, is a clear abuse of process of law and not maintainable in the eye of Law. It is submitted that the suit is liable to be dismissed.

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The plaintiff had filed I.A.Nos.10 and 11, where I.A.No.10 is filed seeking an injunction restraining defendant Nos.2 and 3, their agents or anybody acting through them from alienating or encumbering the suit schedule property. I.A.No.11

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NC: 2024:KHC:36556 MFA No. 5506 of 2024

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is filed restraining defendant Nos.2 and 3 from putting up any further construction in the suit B schedule property. The Trial Court, by order impugned had dismissed the said applications filed by the plaintiff. The Trial Court, after considering the respective cases of both the parties and the documents that are relied on by both the parties and also the suits that are filed and pending between the parties, came to the conclusion that the case of the plaintiff is full of doubt wherein the material placed by the defendants are clinching on their title and continuous possession, there is a decree in favour of defendant No.1 dated 03.10.2017 in O.S.No.2236/2013 that too against vendor’s vendor of the plaintiff herein which is much prior to the sale transaction of the plaintiff as his sale deed is dated 12.08.2020. Thus, the plaintiff made no prime facie case to grant an injunction in the nature as sought under I.A.No.1 and 2 to restrain defendant No.1 and 2 from alienating or encumbering the suit property and to restrain them from putting up further construction. During the course of argument, it is placed before the Court that the construction has been completed and defendant No.1 occupied the ground floor of the portion which is not disputed by the plaintiff and the Court held

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NC: 2024:KHC:36556 MFA No. 5506 of 2024

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that I.A.No.2 has become infructuous. The Court observed that injunction against the defendants causes more injury and hardship to the defendants than by the plaintiff as the defendants by investing huge money have put up the construction. Based on the doubtful transaction, if an order of injunction is granted in favour of the plaintiff which causes irreparable injury and loss to the defendants which cannot be compensated in any manner. The Trial Court also observed that the case of the plaintiff appears to be arm twisting against the persons who is having possession based on the title since 13.03.2003, which is on the undisputed point of time, as by that time neither the plaintiff nor her vendors were in picture at all. More than anything, even assuming that land bearing Sy.No.242/1 has been sold by Faiz Ahmed, but as on the date of the sale in favour of Shashikanth Rao and Deepak, there was no land vacant, by way of sale there was a charge on the suit property. That apart, there is no material to show the identification of suit A schedule property and accordingly, I.A.Nos.10 and 11 filed with the plaintiff were dismissed. Aggrieved thereby the plaintiff is before this Court.

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Learnedcounsel appearingfor theplaintiff and the learned Senior Counsel appearing for the defendants/respondent have extensively argued. According to the learned counsel for the appellant the Vishwabharathi Housing Complex Layout is not the owner of the property. Hence they cannot execute a sale deed in favour of defendant No.1’s vendor and he had relied on the land acquisition proceedings and an order passed in the Writ Appeal and also the pending RA. Learned Senior Counsel had relied on the GPA, the right of the Vishwabharathi Housing Complex Layout to execute the document and it is stated that ever since date of pursuance the defendant’s vendors thereafter defendant are in possession of the property and the injunction that is granted in against the plaintiff’s vendor, shows the possession of the defendants.

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This Court having heard both the learned counsels had reserved the matter. The matter was reserved on 31.08.2024 and for pronouncement of judgment was directed to be listed on 05.09.2024. Till such time, this court has directed the respondent not to alienate the suit schedule property. On 03.09.2024, a memo is filed by the defendants stating that the appellant has filed the appeal challenging the impugned order

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NC: 2024:KHC:36556 MFA No. 5506 of 2024

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dated 14.02.2024 passed by the Trial Court in O.S.No.577/2023 and on previous day, the Court had heard the appeal and reserved the matter for orders. The respondent/defendant submits that they are ready to give an undertaking before the Court that they will not alienate the suit schedule property till disposal of the suit in O.S.No.577/2023. The relief sought by the plaintiff in I.A.Nos.10 and 11 are not to alienate the property and the other relief is not to make further constructions. As per the material placed on record and the photographs filed the construction is already completed and that application has become infrcutuous. Accordingly, dismissed. When it comes to the relief of not to alienate, in the light of the memo that is placed before this Court, this court is passing the following,

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ORDER

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i. I.A.No.11 is filed not to make further constructions. As already construction is completed, nothing survives in the said I.A. accordingly, I.A.No.11 is dismissed as infructuous.

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ii. I.A.No.10 is filed seeking an injunction restraining the respondent from alienating the property. In the light of the memo dated 03.09.2024 filed by the defendant, there shall be directions restraining them from alienating the property.

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iii. Accordingly, the MFA is disposed off .

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iv. All I.As., in the appeal, shall stand closed.

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SD/(LALITHA KANNEGANTI) JUDGE

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Smt Yamuna M R v. Sri Nagaraju T

Case brief

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Smt Yamuna M R v. Sri Nagaraju T

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