Allowed

Mothisingh v. Somachari

Karnataka HC21 Nov 2024MFA/6698/2022

Case brief

AI extract

What is this about?

This appeal challenged the rejection of interim injunction applications. The High Court held the Trial Court erred in dismissing them despite a registered power of attorney and filed suits by original owners, granting interim relief to restrain the defendant from alienating the property.

What did the court decide?

Interim injunction granted to restrain defendant from meddling with, developing, or alienating the schedule property until suit disposal.

Mothisingh Vs Somachari — Contract and Commercial Disputes | Karnataka HC (2024)

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NC: 2024:KHC:47289 MFA No. 6698 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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MISCELLANEOUS FIRST APPEAL NO.6698 OF 2022 (CPC)

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BETWEEN:

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MOTHISINGH, S/O B. HAPU SINGH, AGED 46 YEARS, NO.1468/69, 1^ST CROSS, KABIR ROAD, LAKSHKAR MOHALLA, MYSORE.

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…APPELLANT

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(BY SRI. SANGAMESH R.B., ADVOCATE)

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AND:

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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SOMACHARI, S/O LATE NARASAMMA, AGED ABOUT 44 YEARS.

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SMT. CHALUVAMMA, D/O LATE LINGACHARI, AGED ABOUT 55 YEARS.

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SMT. RATHANAMMA, W/O LATE GOVINDACHARI, AGED ABOUT 51 YEARS.

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CHALUVARAJU, S/O LATE GOVINDACHARI, AGED ABOUT 32 YEARS.

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SMT. GOWRAMMA @ GOWRI, D/O LATE GOVINDACHARI, AGED ABOUT 26 YEARS.

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SMT. SAKAMMA, D/O LATE LINGACHARI, AGED ABOUT 51 YEARS.

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SMT. RATHNAMMA, D/O LATE LINGACHARI, AGED ABOUT 46 YEARS.

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ALL THE ABOVE 1 TO 7 ARE RESIDING AT HURALIKYTHANAHALLI VILLAGE, KASABA HOBLI, S.P.PATNA TALUK.

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SRI NAGESH, S/O LATE CHOWDEGOWDA, AGED ABOUT 56 YEARS, HOMMARAGALLI VILLAGE, HAMPAPURA HOBLI, H.D.KOTE TALUK, MYSORE DISTRICT.

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SMT. MANJULA, W/O M.MANJUNATH, AGED ABOUT 34 YEARS, R/AT NO.24, 13^TH CROSS, 3^RD MAIN, NEAR GANESH TEMPLE, MAGADI ROAD, CHOLARAPALYA, BANGALORE NORTH.

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…RESPONDENTS

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(BY SRI. MALLIKARJUNA SWAMY N.S., ADVOCATE FOR R1 TO R4, R6, R7 AND R9; VIDE ORDER DATED 26.06.2023, R3 AND R4 ARE LRS OF DECEASED R5; SRI S. RAJASHEKAR & ASSOCIATES FOR R8)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) R/W SECTION 151 OF CPC, PRAYING TO SET ASIDE THE IMPUNGED ORDER DATED 14.09.2022 PASSED ON IA NO.1 AND 2 IN O.S.NO.774/2022 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, MYSURU.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2024:KHC:47289 MFA No. 6698 of 2022

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CORAM: HON'BLE MR JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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Heard the learned counsel for the appellant and the learned counsel for the respondents.

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This appeal is filed challenging the rejection of I.A.Nos.1 and 2 filed under Order 39 Rules 1 and 2 of CPC by the plaintiff seeking the relief of restraining defendant No.8 from meddling with the schedule property in any manner including carrying out any sort of development activity and also not to alienate the same till the disposal of the suit.

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The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of declaration and interalia seeking temporary injunction, it is stated that originally the property belongs to Cheluvachari and Lingachari, who have purchased the property in the year 1958 and the same is also in the joint name. It is the contention of the appellant/plaintiff that the legal representatives of Lingachari have executed power of attorney in respect of entire extent on 07.05.2015 and

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received the entire sale consideration and also delivered the possession and the sale deed was not executed for the reason that khatha was not standing in the name of the vendor of the plaintiff and all powers are given to get the khatha transferred and change the revenue entries and for development and to enjoy the property. The counsel would submits that in the mean time, the said Cheluvachari was passed away and hence, the suit was filed by one of the son of Cheluvachari that is Dasachari that is his legal heir against the Lingachari and both of them have compromised the suit in 2017 suppressing the execution of earlier power of attorney executed by the legal heirs of Lingachari and delivery of possession. The counsel also would vehemently contend that the legal heirs of Lingachari and Dasachari clandestinely compromised the same dividing the same as 1 acre 22 guntas each and Dasachari’s legal heirs have sold the property to the extent of 1 acre 22 guntas in favour of defendant No.8 on 20.05.2019 and remaining half also sold by the legal representatives of Lingachari on 19.02.2000. On the strength of these two sale deeds when defendant

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No.8 came to the spot, then only he comes to know about the creation of this document. Hence, the suit is filed for the relief of declaration to declare that those two sale deeds not binding and also sought for the relief of permanent injunction inter alia sought for the relief of temporary injunction.

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The counsel submits that there was an exparte interim order in favour of the appellant/plaintiff and same is vacated while dismissing I.A.Nos.1 and 2. The counsel also would vehemently contend that the Trial Court committed an error in dismissing the applications in coming to the conclusion in paragraph 27 that no recital with regard to power of delivery of possession was made under the power of attorney when the amount of Rs.75,00,000/was paid by them. Even though, the transaction under the said document prima facie appears to be out and out sale. When the Trial Court comes to the conclusion that the recital of document of power of attorney appears to be a out and out sale, ought not to have rejected the applications and very document is a registered document

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wherein it is very clear that sale consideration of Rs.75,00,000/- was received. The Trial Court comes to the conclusion that matter requires trial since it warrants proving of the contents of power of attorney inspite of document was registered long back. The very approach of the Trial Court is erroneous.

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The counsel for respondent No.8 would vehemently contend that respondent No.8 is the bonafide purchaser of the suit schedule property and he had purchased the property from the legal heirs of Dasachari and Lingachari. It is not disputed fact that the Cheluvachari and Lingachari have purchased of the property in the year 1958. The counsel would vehemently contend that at the time of purchasing the property by this respondent, there is no piece of material of possession and even encumbrance is also verified and there is no entry. The counsel would vehemently contend that the Court has to take note of the fact that no material is placed before the Court to show that they were in possession of the suit schedule property. The counsel fairly admits that the Trial

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Court made an erroneous observation that under the GPA, no possession was delivered. Though the said fact is a mistake in referring the document, but in the absence of any documentary proof with regard to the possession is concerned, ought to have comes to the conclusion that the plaintiffs have made out any case. The counsel appearing for the respondent also contend that the prayer is sought only for not binding and not sought for cancellation of those two sale deeds or sought any relief of declaration to declare the appellant is the owner of the property. When the suit itself is not maintainable, the question of granting interim order does not arise.

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Having heard the learned counsel appearing for

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the respective parties and also on perusal of the material available on record, it discloses that there is no dispute with regard to the fact that property was purchased by one Cheluvachari and his son Lingachari vide sale deed dated 12.04.1958. The fact that the father Cheluvachari passed away is not in dispute. It is the main contention of the appellant that there is a GPA executed on 06.05.2015 by

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the legal representatives of Lingachari. The counsel also contends that the other legal heirs of Dasachari have not joined in executing the power of attorney. On account of death of Cheluvachari, the other son Lingachari’s legal heirs also entitled for half share in the remaining property. The said fact is not taken note of by the Trial Court. The Trial Court only comes to the conclusion that the power of attorney is required to be proved. Admittedly, the power of attorney is registered on 06.05.2015 and the respondent also not disputes the said fact but contends that the respondent is the bonafide purchaser and not noticed anything about the transaction. The counsel for the respondent submits there was no any agreement but the counsel for the appellant submits that earlier there was a registered agreement executed by one Smt. Cheluvamma and others in favour of H C Kumaraswamy on 24.06.2009 which was cancelled on 19.10.2015, subsequent to the execution of power of attorney dated 06.05.2015 and all powers are given to the appellant. The counsel also brought to notice of this Court to the recital made in the power of

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attorney wherein reason is also given for non-registration of sale deed even though entire sale consideration has been paid and specifically mentioned that khatha was not standing in the name of the executants of the power of attorney and all powers are given for rectification of the document, for phodi work, for correction of RTC and to get the land surveyed and raise loans and development also. Having perused the recitals of the said document, it is specifically mentioned that possession was delivered having received the amount of Rs.75,00,000/- on the date of execution of the document and same is also found in page

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5 of the power of attorney which was registered.

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Having considered the GPA, when the said document is registered, possession is also delivered. But the Trial Court committed an error in making an observation that there is no recital in the power of attorney for delivery of possession. This discloses that the Trial Court has lost sight about the said recital while rejecting the IAs. When the plaintiff placed the document of GPA which is a registered one, the Trial Court comes to a

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erroneous conclusion that it requires proof of contents of the GPA, when the power of attorney is a registered document. Only contention of the respondent No.8 is that he had purchased the property subsequently by paying the amount, but the counsel appearing for the appellant also brought to notice of this Court that the very original owners have filed the suit against this respondent stating that no

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sale deeds are executed in his favour and no sale consideration was passed. The respondents also not disputes the fact that both of them have filed the suit for cancellation of sale deed but both the suits are subsequently withdrawn and when such material is available before the Court, the matter requires full fledged trial. The Trial Court ought to have taken note of the fact that there was a registered GPA and there is a mention that consideration of Rs.75,00,000/- was paid in favour of the executants of the power of attorney and ought not to have rejected the applications for granting of temporary injunction as sought in I.A.Nos.1 and 2. If any construction is made or changes the improvement, it will leads to a

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multiplicity of proceedings and even if properties are sold by the respondent herein/defendant No.8, it will cause multiplicity of proceedings and hence, the Trial Court ought to have granted the relief of not to alienate also. The Trial Court lost sight of all these facts. While considering the application, when the relief is sought for temporary injunction ought to have taken note of cardinal principles of prima facie case, balance of convenience and hardship and same has not been discussed in the order except making an observation in paragraph 27 that no recital of delivery of possession and the same is erroneous and it requires trial and nothing is discussed with regard to the cardinal principles of prima facie case, balance of convenience and hardship and committed an error in dismissing the applications. Hence, the finding of the Trial Court requires interference of this Court.

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In view of the discussions made above, I pass the following:

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ORDER

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The miscellaneous first appeal is allowed.

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The impugned order dated 14.09.2022 passed on I.A.Nos.1 and 2 in O.S.No.774/2022 is set aside. Consequently, I.A.Nos.1 and 2 are allowed and restrained defendant No.8 as sought in the respective applications till the disposal of the suit.

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The Trial Court is directed to dispose of the matter within a time bound period of one year.

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The learned counsel appearing for the respective parties and parties are directed to assist the Trial Court in disposal of the suit within a time bound period of one year.

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Sd/(H.P.SANDESH) JUDGE

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MD/SN

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List No.: 1 Sl No.: 29

Mothisingh v. Somachari

Case brief

What is this about?

What did the court decide?

Mothisingh v. Somachari

Case brief

What is this about?

What did the court decide?

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