Allowed

Sri Arun Kumar S N v. Sri Deepak M R

Karnataka HC10 Sept 2024MFA/7245/2015

Case brief

AI extract

What is this about?

High Court allowed two miscellaneous first appeals, setting aside the trial court's rejection of interim injunction applications. The court held the trial court's refusal was perverse due to reliance on a Supreme Court-set-aside ruling and directed parties to maintain status quo.

What did the court decide?

I.A.no.1 allowed (temporary injunction against alienation); I.A.no.2 allowed (direction to maintain status quo regarding possession). Trial to be expedited.

Sri Arun Kumar S N Vs Sri Deepak M R — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:36973 MFA No. 7245 of 2015 C/W MFA No. 7246 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI

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MISCELLANEOUS FIRST APPEAL NO.7245 OF 2015 (CPC)

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C/W

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MISCELLANEOUS FIRST APPEAL NO.7246 OF 2015 (CPC)

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BETWEEN:

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SRI ARUN KUMAR S.N., S/O. LATE S.S. NAGARAJAN, AGED ABOUT 51 YEARS, NO.507/508, CLASSIC COURT APARTMENTS, FLAT NO.202, 8^TH CROSS, 7^TH BLOCK, JAYANAGAR, BANGALORE - 560 011.

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…APPELLANT (COMMON)

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[BY SRI M.N.UMASHANKAR, ADVOCATE (PH)]

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AND:

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Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka

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SRI DEEPAK M.R., S/O. LATE M.D.RAMA SETTY, AGED ABOUT 34 YEARS, R/AT MIRLE VILLAGE, K.R.NAGAR TALUK, MYSORE DISTRICT - 571 602.

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SHSHIKANTH RAO, S/O. LATE SHAM RAO, AGED ABOUT 49 YEARS, NO.137, SRINIDHI NILAYA, 37^TH CROSS, KENCHANAHALLI, RAJARAJESHWARI NAGAR, BANGALORE - 560 098.

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…RESPONDENTS (COMMON)

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[BY SRI VENKATARAMA REDDY V., ADVOCATE AND SRI PRADEEP R. ADVOCATE FOR R1 (ABSENT) SRI K.S. RAGHURAM, ADVOCATE FOR R2 (ABSENT)]

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NC: 2024:KHC:36973 MFA No. 7245 of 2015 C/W MFA No. 7246 of 2015

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MISCELLANEOUS FIRST APPEAL NO.7245/2015 IS FILED UNDER ORDER 43 RULE 1(R) OF THE CPC, PRAYING TO SET ASIDE THE ORDER DATED 02.07.2015 PASSED BY THE XLIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BANAGALORE (CCH 44) IN O.S.NO.2085/2013, DISMISSING THE I.A.NO.1 FILED BY THE APPELLANT/PLAINTIFF UNDER ORDER 39 RULE 1 AND 2 CPC, SEEKING TEMPORARY INJUNCTION RESTRAINING THE RESPONDENTS/DEFENDANTS FROM ALIENATING THE SUIT SCHEDULE PROPERTY, IN THE INTEREST OF JUSTICE AND ETC.,

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MISCELLANEOUS FIRST APPEAL NO.7246/2015 IS FILED UNDER ORDER 43 RULE 1(R) OF THE CPC, PRAYING TO SET ASIDE THE ORDER DATED 02.07.2015 PASSED BY THE XLIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BANAGALORE (CCH 44) IN O.S.NO.2085/2013, DISMISSING THE I.A.NO.2 FILED BY THE APPELLANT/PLAINTIFF UNDER ORDER 39 RULE 1 AND 2 CPC, SEEKING TEMPORARY INJUNCTION RESTRAINING THE RESPONDENTS/DEFENDANTS FROM INTERFERING WITH THE PEACEFUL POSSESSION AND ENJOYMENT OF THE SUIT SCHEDULE PROPERTY, IN THE INTEREST OF JUSTICE AND ETC.,

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THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 22.06.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, THROUGH VIDEO CONFERENCE, THE COURT PRONOUNCED THE FOLLOWING:

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CAV JUDGMENT

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Challenging common orders dated 02.07.2015 passed by XLIII Addl. City Civil and Sessions Judge, Bengaluru (CCH-44), in O.S.no.2085/2013 on I.A.no.1 and 2 filed under Order XXXIX Rules 1 and 2 of Code of Civil Procedure (‘CPC’ for short), these appeals are filed.

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Sri M.N. Umashankar, learned counsel for appellants submitted, appeals were by plaintiff in suit filed for declaration and permanent injunction against defendants in respect of suit schedule property. In said suit, plaintiff had filed two applications. I.A.no.1 seeking for order of temporary injunction restraining defendants from alienating schedule property during pendency of suit. And I.A.no.2 for temporary injunction restraining defendants and their agents from interfering with peaceful possession and enjoyment of suit schedule property till disposal of suit. It was submitted, under impugned order, trial Court rejected applications, leading to these Appeals.

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It was submitted, Vishwabharathi House Building Cooperative Society ('Society' for short) had formed layout in

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63 acres of land bearing Sy.212 to 242/2 of Halegavadarahalli village, Sachidanandanagar, Phase-V, Vishwabharathi Housing Complex, Kengeri Hobli, Bengaluru South. It was submitted, in year 1993, City Municipal Council, Pattanagere had approved layout for formation of sites. Thereafter basic amenities were provided. It was submitted, on plaintiff becoming member, he was allotted site no.574/B measuring East to West 109 feet and North to Sought 40 feet totally measuring 4360 Sq.Ft. in said layout (hereinafter referred to as ‘suit property’ for short). On 23.01.2006, registered sale deed was executed in favour of plaintiff. Thereafter, he obtained khata certificate from Bruhath Bengaluru Mahanagara Palike, Bengaluru (‘BBMP’ for short) and was paying tax.

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It was submitted, when plaintiff began construction on suit property, without any right, title or interest, defendants obstructed it claiming to have purchased agricultural land bearing Sy.no.242/1 to extent of 02 Acres 29 guntas situated at Halagevadarahalli village. It was submitted, plaintiff along with other site owners had approached Rajarajeswari Nagar Police Station and filed complaint against defendants. Thereafter, defendants were trying to alienate suit property and

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dispossess plaintiff. However, trial Court without appreciation of documents produced by plaintiff, relying on concocted documents produced by defendants, rejected I.As.no.1 and 2, referring to decision in Mangalagowri v. Keshavamurthy & Others, reported in ILR 2001 KAR 3249.

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It was submitted, though plaintiff was in possession and enjoyment of said property from date of purchase, defendants were illegally interfering with his possession. It was submitted, O.S.no.2355/2001 filed by Society against State and others was decreed on 12.04.2005 after recording finding that Society was in lawful possession of sites in layout.

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It was submitted, to substantiate his case, plaintiff had produced General Power of Attorney and agreement executed by Fayaz Khan in favour of Society, which indicated, executants had received entire sale consideration and Society was authorized to get its name mutated in revenue records, form layout and execute registered sale deeds in favour of prospective purchasers. It had also produced documents to establish that Society had formed sites, laid roads, obtained electricity and UGD connection as part of its developmental

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NC: 2024:KHC:36973 MFA No. 7245 of 2015 C/W MFA No. 7246 of 2015

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activities. Said documents also indicated that few

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allottees/purchasers had put up construction.

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To corroborate same, information provided by SubRegistrar, Kengeri in respect of sale deeds executed between 01.04.2007 to 31.12.2010 in respect of about 840 sale deeds was produced. Similarly another list of sites sold from 01.06.1989 to 31.03.2004 was produced with particulars of khata issued. Another document issued by BESCOM about 249 connections with particulars of names sanctioned from year 1999 to 2010 was also produced. In addition, plaintiff produced Revised Master Plan, 2015, which included Halagevaderahalli village by showing it reserved for residential use. Thus, there was no need for obtaining conversion of land. But, trial Court failed to take note of same.

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On other hand, defendants claimed that agricultural bearing Sy.no.242/1 measuring 2 Acres 29 guntas including 18 guntas of kharab of Halagevaderahalli belonged to Fayaz Ahmed Khan who had purchase it from its earlier owner Sri S.Amruthalingam under registered sale deed dated 27.09.1958. Further, Special Deputy Commissioner by order dated

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24.06.1962 had confirmed said Fayaz as tenant. They contended Fayaz continued as owner in possession with revenue records continuing to show his name. Under sale deed dated 26.07.2011, defendants had purchased land bearing Sy.no.242/1. Thereafter they had got khata transferred in their name. Subsequently they had applied for conversion to nonagricultural-residential use. Under Official Memorandum dated 21.06.2012, conversion was granted. In meanwhile on 03.03.2012, Society had issued a public notice, declaring that previous Managing Committee of Society had fraudulently executed over 200 sale deeds without acquiring any valid right, title or interest in respect of lands bearing Sy.nos.212, 213, 216, 237/1, 238 to 241, 242/1 and 242/2 of Halagevaderahalli village and for which office bearers were behind bars.

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They also alleged that there was no transfer of

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ownership of lands to Society nor said lands were acquired. Therefore, sale deeds executed by erstwhile office bearers of Society did not confer any right, title or interest. Defendants also asserted that Society had in fact applied and obtained refund of amount deposited by it before Government towards cost of acquisition. They also relied on findings in

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Mangalagowri’s case (supra) and contended that there were several irregularities and illegalities committed by Society including alleged sale in favour of plaintiff.

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In reply, learned counsel for appellant submitted main reason assigned by trial Court to conclude that plaintiff had failed to establish prima facie case was with reference to finding in Mangalagowri’s case (supra). But said judgment was questioned before Hon’ble Supreme Court in C.A.no.21712172/2002, which was disposed on 03.04.2008 by directing parties to maintain status-quo regarding possession over suit property. It was pointed out that Hon’ble Supreme Court has specifically referred to observations made by this Court in course of its order in Mangalagowri’s case (supra) about Society not acquiring any title to land in Halagevadarahalli and Society had playing fraud etc. had been set-aside.

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It was submitted execution of Sale Deed by Society in favour of plaintiff was after disposal of appeal by Hon’ble Supreme Court. Therefore, reference/reliance by trial Court to observations in Mangalagowri’s case (supra) would amount to commission of material irregularity if not perversity.

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Heard learned counsel and perused impugned order. Though respondents were served and represented, none appeared. It is however seen that objections have been filed, which are a virtual reiteration of their written statements/objections to IAs filed by plaintiff, which are already noted above.

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Thus, it is seen, appellant is challenging order passed by trial Court on ground of perversity of conclusions, point that would arise for consideration is:

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“Whether impugned order passed by trial Court suffers from perversity and calls for interference?”

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Perusal of impugned order reveals, trial Court has taken note of pleadings and contentions of both parties, framed proper points for consideration and passed reasoned order.

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Insofar as prima facie case, trial Court observed,

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fact that society was developing land over such a long period of time and faced several litigation with regard to other sites also were amongst factors that would weigh in favour of plaintiff. On reasoning that same would not have been permitted, if Fayaz

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Khan was in possession, it observes contention about Fayaz Khan being in possession would be doubtful. Referring to decision of Hon’ble Supreme Court in case of Seth Loon Karan

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Sethiya v. Ivan John and others, reported in AIR 1969 SC 7338, for proposition that General Power of Attorney coupled with interest would be irrevocable and validly create interest in property. It overruled contention of defendant about originals of General Power of Attorney and agreement of sale not being produced, with observation that certified copies thereof would suffice.

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Referring to decision in Mangalagowri’s case

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(supra) and defendant’s contention that society had taken refund of amount deposited by it towards acquisition, it concludes land was not acquired in favour of society. At same time, referring to contents of GPA and agreement of sale, it observes recitals about society taking over lands, forming layout etc., would indicate that Fayaz Khan was not in possession, therefore defence taken by defendant was not prima facie acceptable. Ultimately, referring to findings in Mangalagowri’s case (supra), it concludes plaintiff had failed

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to establish prima facie case. Findings on other points are consequential to finding on prima facie case.

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Therefore, it is evident that observations/findings in Mangalagowri’s case (supra) weighed heavily with trial Court for rejection of I.As. filed by plaintiff. However, it is seen, said decision was questioned before Hon’ble Supreme Court by Society. And C.A.no.2171-2172/2002 [in SLP(C) nos.1090110902/2001] was disposed of on 03.04.2008 by directing parties to maintain status-quo regarding possession over suit property and setting at naught observations about Society not acquiring any title to land in Halagevadarahalli and Society had playing fraud etc. In fact, said order was brought to notice of trial Court and referred to by it in para-13 of impugned order. There is failure to refer to same while assigning reasons. In view of fact that said observations in Mangalagowri’s case (supra) forms main basis for passing impugned order, it would have to be held, conclusion by trial Court suffers from perversity on ground that conclusion was contrary to material on record.

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In fact, order passed by Hon’ble Supreme Court in C.A.no.2171-2172/2002 [in SLP(C) nos.10901-10902/2001] reads as follows:

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“While granting leave on 11.03.2002, a Bench of this Court directed maintenance of status quo as regards possession in regard to disputed property. It was observed that the Trial Court was free to proceed with the suit. We are told that the trial of the suits in question is in progress. We request the Trial Court to conclude the trial within a period of four months from today, if not already done. The order of status quo passed on 11.03.2002 shall continue till the disposal of the suits. We make it clear that by giving this interim protection it shall not be construed as if we have expressed any opinion on the merits of the case. The appeals are accordingly disposed of.

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SLP(C) nos.10901-10902/2001: Leave granted. The main grievance of the appellant seems to be that the direction as contained in paragraphs 19 and 20 of the impugned judgment are really uncalled for and have no legal sanction. We find substance in the plea. We direct that the directions given in paragraphs 19 and 20 of the impugned judgment shall not be carried out.”

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19. In view of above, observations/conclusion by trial

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Court, about failure of plaintiff to establish prima facie case would lose its efficacy. There is no material placed regarding final result in said suit. However, trial Court herein has observed that during pendency of various litigation, society had carried out developments and on said reason, as noted above,

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trial Court had observed that even defence of defendants was not prima facie acceptable.

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Insofar as conclusion by trial Court about plaintiff failing to establish identity of suit property as neither site no.574B nor any site measuring 109ft. X 40ft. appeared to have been formed, from layout plan produced by plaintiff, it is seen, neither of parties have asserted that there was any layout plan was approved by competent authority. To substantiate right insofar as suit property, plaintiff has relied on documents about membership in Society, site allotment letter, registered sale deed executed by Society and Khata Certificate issued by BBMP, corroborated by Demand Register Extract, Encumbrance Certificate etc.

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Plaintiff has also relied on judgment and decree dated 12.04.2005 in O.S.no.2355/2001 wherein trial Court had declared communication dated 06.09.2000 by Divisional Commissioner as illegal and directing CMC, Pattanagere to register khata and Sub-Registrar, Kengeri to register all deeds of conveyance in respect of layout formed by Society. On going through records of trial Court, it is seen from certified copy of

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information provided by Sub-Registrar, Kengeri to Nethrakere Uday Shankar Narayan Bhat on 31.12.2008, there is reference to sale deed executed by Society in favour of plaintiff in respect of suit property with dimensions. Perusal of entire layout sketch produced before trial Court and available in trial Court records would indicate that there are sites of various dimensions including four sites measuring 90ft. X 110ft. Therefore, at stage of consideration of I.As. for injunction, trial Court does not require to hold mini trial or record categorical findings on facts as same would be matters for trial.

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In fact, trial Court had prior to passing of impugned order, granted ex-parte ad-interim order directing parties to maintain status quo. Therefore, unless circumstances were so established that its continuation was not justified, trial Court would not be justified in vacating said order. Order directing both parties to maintain status quo with regard to suit property would also be in tune with order passed by Hon’ble Supreme Court.

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It is also seen that this Court by order dated 16.10.2015 had directed both parties to maintain status quo

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with regard to suit property till next date of hearing and said interim order was extended and in existence till 13.06.2023 i.e. for nearly eight years during pendency of this appeal and more than ten years from date of grant of ex-parte interim order in suit. In view of fact that suit is at stage of trial would also requires to be taken into account.

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In light of fact that both plaintiff and defendants claim to have purchased property for valuable sale consideration, ratio in Maharwal Khewaji Trust (Regd.) v. Baldev Dass, reported in (2004) 8 SCC 488, requires to be followed and points regarding balance of convenience and irreparable loss and injury, answered partly in affirmative.

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25. Consequently, following:

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ORDER

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MFA.no.7245/2015 is allowed. Order dated 02.07.2015 passed by XLIII Addl. City Civil and Sessions Judge, Bengaluru (CCH-44), in O.S.no.2085/2013 on I.A.no.1 filed under Order XXXIX Rules 1 and 2 of CPC for temporary injunction restraining defendants from alienating suit property during pendency of suit, is set aside. I.A.no.1 stands allowed.

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MFA.no.7246/2015 is allowed in part. Order dated 02.07.2015 passed by XLIII Addl. City Civil and Sessions Judge, Bengaluru (CCH-44), in O.S.no.2085/2013 on I.A.no.2 filed under Order XXXIX Rules 1 and 2 of CPC for temporary injunction restraining defendants from interfering with peaceful possession and enjoyment of suit schedule property till disposal of suit, is set aside. I.A.no.2 stands disposed of by directing both parties to maintain status quo with regard to nature and possession of suit property till disposal of suit.

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Both parties are directed to co-operate for early disposal of suit. Likewise, trial Court is directed to expedite disposal of suit.

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Registry to forthwith transmit trial Court records back to trial Court.

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Sd/(RAVI V HOSMANI) JUDGE

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Psg/GRD/CLK List No.: 19 Sl No.: 1

Sri Arun Kumar S N v. Sri Deepak M R

Case brief

What is this about?

What did the court decide?

Sri Arun Kumar S N v. Sri Deepak M R

Case brief

What is this about?

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