Dismissed

Sri M M Mustaffa v. Mrs Pauline Queeny Anand

Karnataka HC19 Jun 2024RSA/1164/2015

Case brief

AI extract

What is this about?

High Court dismissed regular second appeal at admission stage. Bench held appellant failed to prove possession due to unmarked impounded agreement. Appeal against injunction ruling disposed notionally as no second appellant filed.

What did the court decide?

Set aside of lower court judgments and grant of injunction dismissed. Pending interim applications disposed with disposal of appeal.

Sri M M Mustaffa Vs Mrs Pauline Queeny… — Contract and Commercial Disputes | Karnataka HC (2024)

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1 - NC: 2024:KHC:22406 RSA No. 1164 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ REGULAR SECOND APPEAL NO. 1164 OF 2015 (INJ)

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BETWEEN:

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SRI M.M. MUSTAFFA, S/O MOHAMMED MULIPADPU, AGED ABOUT 44 YEARS, R/AT FATHIMA HOUSE, FARANGIPETE, BANTWAL TALUK, PRESENTLY R/AT DOOR NO.7-86, ULLAL KODI DOWN ROAD, ULLAL POST, MANGALORE TALUK -575020.

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…APPELLANT

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(BY SRI. USMAN P., ADVOCATE)

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AND:

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Digitally signed by NARAYANAPPA LAKSHMAMMA Location: HIGH COURT OF KARNATAKA

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MRS. PAULINE QUEENY ANAND, W/O LATE PERCY SADANANDAN, AGED ABOUT 61 YEARS, R/AT MANASWADI, BANGALORE - 560 043.

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MR. SAVIO PERCY ANAND, S/O LATE PERCY SADANANDAN, AGED ABOUT 39 YEARS, RA/T 14-04-343, KUDUMBU GARDEN,

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NC: 2024:KHC:22406 RSA No. 1164 of 2015

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DON BASCO CROSS ROAD, MANGALORE - 575 001.

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…RESPONDENTS

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(BY SMT. REKHA DAISY LOBO AND SRI.CYRIL PRASAD PAIS FOR R1.,)

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(R2 - SERVED AND UNREPRESENTED)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., A) ALLOW THE APPEAL OF THE APPELLANT. B) SET ASIDE THE JUDGMENT AND DECREE DATED 10.07.2012 PASSED IN O.S.NO.639/2006 ON THE FILE OF THE 1^ST ADDITIONAL CIVIL JUDGE AND JMFC AT MANGALORE, DK AS WELL AS THE JUDGMENT AND DECREE DATED 16.01.2015 PASSED IN RA NO.59/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM AT MANGALORE, BY DISMISSING THE SUIT AND ETC.

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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 appellant is present before this Court and seeking for following reliefs:

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a) Allow the appeal of the appellant.

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b) Set aside the Judgment and Decree dated: 10.07.2012 passed in O.S. No.639/2006 on the file of the 1^st Addl. Civil Judge and JMFC at Mangalore, DK as well as the Judgment and Decree dated: 16.01.2015 passed in RA No.59/2012 on the file of the Principal Senior Civil Judge and CJM at Mangalore, by dismissing the suit.

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c) Grant such other relief or reliefs as this Hon'ble Court may deem fit to grant in the facts circumstances of the case in the interest of justice.

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3 - NC: 2024:KHC:22406 RSA No. 1164 of 2015

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Suit in O.S.No.639/2006 had been filed by respondent No.1 herein against the appellant, who was defendant No.1 and respondent No.2 was defendant No.2 in the said suit for permanent injunction restraining the defendants from trespassing into or committing any acts of waste or damage and restraining the 2^nd defendant from alienating the suit schedule property.

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The suit having been decreed in toto and the injunction order granted, the appellant/defendant No.1 had filed a regular appeal in RA No.59/2012, the Principal Senior Civil Judge and CJM at Mangalore, vide judgment dated 16.01.2015 dismissed the First appeal. Challenging the concurrent findings, the appellant is before this Court.

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The contention of Sri. P. Usman, learned counsel for the appellant is that the suit schedule property was

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4 - NC: 2024:KHC:22406 RSA No. 1164 of 2015

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owned by three co-owners. The plaintiff being one of them was entitled to only 1/3^rd interest in the property and there being two other owners in respect of balance 2/3^rd of the property, those co-owners had executed an agreement of sale in favour of defendant No.1 on 10.06.2005 agreeing to sell the suit schedule property. Apart there from defendant No.2 being power of attorney holder of the plaintiff had also executed the very same agreement of sale agreeing to convey to 1/3^rd interest of the plaintiff in the suit schedule property.

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His further contention is that under the said agreement of sale, defendant No.1 had been put in possession of the suit schedule property, as such defendant No.1 having stepped into the shoes of all the co-owners including the plaintiff since possession was handed over under the agreement of sale in his favour, the Co-owners could not have instituted a

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5 - NC: 2024:KHC:22406 RSA No. 1164 of 2015

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suit for injunction restraining interference when defendant No.1 had been put in possession.

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Having gone through the judgment of the Trial Court as also the First Appellate Court, it is seen that the alleged agreement of sale dated 10.06.2005 though produced before the Trial Court was not marked in evidence, since the said agreement of sale had been impounded, penalty and duty directed to be paid, was not so paid.

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In the absence of the very agreement of sale under which defendant No.1 claims to have been put in possession not having been produced before the Trial Court, it is not open for the defendant No.1 to claim that he was put in possession, since the very document under which he claims has not been exhibited in this suit.

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Be that as it may, even the document under which possession is claimed i.e., an agreement of sale of

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6 - NC: 2024:KHC:22406 RSA No. 1164 of 2015

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the year 2005 has not concluded into a sale deed, more so, the plaintiff denying the execution of a power of attorney in favour of defendant No.2 and defendant No.2 having been restrained by an order of injunction from alienating the suit schedule property or any part thereof has not chosen to file any appeal either before the First Appellate Court or before this Court.

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Thus, taking into consideration all the above facts defendant No.1/appellant has not been able to establish that he has been put in possession and or has continued to be in possession of the suit schedule property. The suit being only one for a perpetual injunction restraining the defendant from interfering with the possession and plaintiff having established possession, defendant No.1 not having been able to establish possession, I do not find any infirmity in the order of Trial Court and the First Appellate Court.

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NC: 2024:KHC:22406 RSA No. 1164 of 2015

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Insofar as the order of injunction restraining defendant No.2 from alienating the property, there being no appeal filed by 2^nd defendant before the First Appellate Court or before this Court, the same would not be required to be considered. The appeal is dismissed at the admission stage.

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The judgment is only as regards the injunctory relief as sought for, in the event of defendant No.1 being entitled to file any other proceedings, the same shall be considered on merits by the Court without reference to the observations made herein.

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In view of disposal of the appeal, the pending IAs' also stand disposed of.

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Sd/JUDGE

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RMS List No.: 1 Sl No.: 30

Sri M M Mustaffa v. Mrs Pauline Queeny Anand

Case brief

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Sri M M Mustaffa v. Mrs Pauline Queeny Anand

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