Allowed

Sri Pratap O Kukreja, v. Sri Ramesh O Kukreja

Karnataka HC26 Mar 2024MFA/8644/2023

Case brief

AI extract

What is this about?

Appeal against an interim injunction restraining alienation of suit property in a suit to cancel a gift deed. The suit schedule mistakenly described the ground floor, which the plaintiff never owned, instead of the gifted first floor. The High Court set aside the injunction and allowed amendment liberty.

What did the court decide?

Impugned order dated 04.12.2023 set aside; appeal allowed in part; plaintiff at liberty to seek appropriate relief after amending the suit schedule.

Sri Pratap O Kukreja, Vs Sri Ramesh O Kukreja — Specific Performance | Karnataka HC (2024)

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1 - NC: 2024:KHC:12492 MFA No. 8644 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ MISCELLANEOUS FIRST APPEAL NO. 8644 OF 2023 (CPC)

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BETWEEN:

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SRI. PRATAP O. KUKREJA, S/O. LATE OTANMAL KUKREJA AGED ABOUT 62 YEARS RESIDING AT NO.31, 1^ST FLOOR 2^ND MAIN, 3^RD CROSS, CHAKRAVARTHY LAYOUT, PALACE CROSS ROAD, BENGALURU-560020

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…APPELLANT

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(BY SRI. SHANKAR G., ADVOCATE)

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AND:

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Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA

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SRI. RAMESH O. KUKREJA S/O. LATE OTANMAL KUKREJA AGED ABOUT 72 YEARS RESIDING AT NO.31, FIRST FLOOR, 2^ND MAIN, 3^RD CROSS, CHAKRAVARTHY LAYOUT, PALACE CROSS ROAD, BENGALURU-560020

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…RESPONDENT (BY SMT. RAJESWARI M., ADVOCATE FOR CAVEATOR RESPONDENT)

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THIS MFA IS FILED UNDER SECTION 43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 04.12.2023 PASSED ON IA NO.2 IN O.S.NO.7651/2022 ON THE FILE OF THE XIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH-28), ALLOWING IA NO.2 FILED UNDER ORDER 39 RULES 1 AND 2 READ WITH SECTION 151 OF CPC.

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NC: 2024:KHC:12492 MFA No. 8644 of 2023

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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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This appeal is filed by the defendant in O.S.No.7651/2022 on the file of XIV Additional City Civil and Sessions Judge, Bengaluru challenging an order dated 04.12.2023, by which, the Trial Court restrained the defendant from alienating the suit schedule property.

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The case of the plaintiff was that he was the owner of the first floor of the property bearing No.31, 2^nd Main, 3^rd Corss, Chakravarthi layout, Palace Cross Road, Bengaluru - 560020. He claimed that due to various reasons, he executed a gift deed bequeathing the first floor property to the defendant on 08.07.2016. He claimed that the defendant had allowed the plaintiff to reside in the ground floor of the property which was owned by the defendant. He claimed that the defendant had agreed to transfer 50% of his undivided interest in a property at Mumbai and had agreed to pay Rs.60,00,000/- but he did not do so.

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The plaintiff therefore, sought for a declaration that

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the gift deed dated 08.07.2016 was null and void and for

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3 - NC: 2024:KHC:12492 MFA No. 8644 of 2023

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consequential injunction. An application (I.A.No.1) for interim injunction was also filed for restraining the defendant from alienating the suit property.

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The defendant contested the suit and admitted the fact that the plaintiff had executed a gift deed dated 08.07.2016 bequeathing the first floor of suit premises mentioned above. He also admitted that he was a owner of the ground floor premises and same was let out to the plaintiff. The defendant contested the application for injunction on similar lines and contended that he did not interfere with the possession of the plaintiff in the ground floor and that he had issued a notice of termination of tenancy and had proposed to take suitable steps as provided in law to evict the plaintiff from the suit property.

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Based on these contentions, the Trial Court held that the plaintiff has made out of a prima facie case for an order of injunction to restrain the defendant from encumbering or alienating the suit schedule property.

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Being aggrieved by the said order this appeal is

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filed.

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NC: 2024:KHC:12492 MFA No. 8644 of 2023

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The learned counsel for the defendant submitted that the suit was in respect of the first floor premises which was gifted by the plaintiff to defendant, but suit property was wrongly described as ground floor. He submits that the defendant was the owner of the ground floor of the suit property, he having purchased it in terms of the sale deed dated 04.02.1998. He therefore, submits that the plaintiff had no right, title or interest in respect of the ground floor of the suit property and therefore he was not entitled to any relief or interim relief much less, an interim relief in respect of the ground floor property.

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At this stage, the learned counsel for the plaintiff submits that a mistake was crept in, while describing the schedule property and she submits that instead of describing the suit property as first floor, it was described as ground floor. She admits that the plaintiff did not have any right, title or interest in respect of the ground floor of the suit property and therefore the defendant cannot be restrained from encumbering or alienating the ground floor of suit property.

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NC: 2024:KHC:12492 MFA No. 8644 of 2023

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I have considered the submissions made by the

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learned counsel for the plaintiff as well as the learned counsel for the defendant.

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The suit was to cancel the gift deed dated 08.07.2016 executed by plaintiff in favour of defendant by which, he conveyed the property lying on the first floor of the property bearing No.31, 2^nd main road, 3^rd Cross, Chakravarthy layout, Palace Cross Road, Bengaluru. However, while describing the property in the schedule to the suit, it was wrongly mentioned as the property lying in the ground floor. It is admitted that the defendant was the owner of the property in the ground floor and he had inducted the plaintiff in the ground floor as a tenant. Therefore, the plaintiff did not have title to the property lying in the ground floor and hence was not entitled to any order of interim injunction restraining the defendant from alienating or transferring the property in the ground floor. The Trial Court apparently did not look into the flaw in the suit, but blindly granted an interim injunction, which warrants interference.

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NC: 2024:KHC:12492 MFA No. 8644 of 2023

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Hence, this petition is allowed in part and the impugned order dated 04.12.2023 passed in O.S.No.7651/2022 by the Trial Court is set aside. Liberty is reserved to the plaintiff

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to seek for appropriate relief after suitably amending the schedule to the suit.

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Sd/JUDGE

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HJ List No.: 1 Sl No.: 45

Sri Pratap O Kukreja, v. Sri Ramesh O Kukreja

Case brief

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Sri Pratap O Kukreja, v. Sri Ramesh O Kukreja

Case brief

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