Writ petition by defendants challenging interim injunction restraining alienation of suit property in a title suit over land developed under a joint development agreement. Court found plaintiffs had slept over their rights, modified the injunction: future alienations to be subject to the result of the suit.
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NC: 2024:KHC:19603 WP No. 8853 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE M.I.ARUN WRIT PETITION NO.8853 OF 2024 (GM-CPC)
BETWEEN:
Digitally signed by V MANJUSHA BAI Location: High Court of Karnataka
PETITIONER NOS.4 TO 6 ARE R/AT KUMBENA AGRAHARA VILLAGE KADUGODI POST, BANGALORE-560 067.
…PETITIONERS
(BY SRI RAJESH GOWDA, ADVOCATE)
AND:
SINCE DEAD BY LR'S
RESPONDENT NOS.1 TO 4 ARE RESIDING AT KUMBARPET KASABA HOBLI, HOSKOTE TALUK BANGALORE RURAL DISTRICT-562 114.
…RESPONDENTS
(BY SRI A.V. GANGADHARAPPA, ADVOCATE FOR SRI H. NAGARAJ, ADVOCATE FOR C/R-1 TO R-4; NOTICE TO R-5 IS DISPENSED WITH VIDE
COURT ORDER DATED 05.06.2024)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OR NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT ORDER OR DIRECTION THEREBY QUASHING THE ORDER DATED 21.04.2023 PASSED BY THE IV ADDITIONAL SENIOR CIVIL JUDGE, BANGALORE RURAL DISTRICT, BANGALORE IN O.S.NO.26/2021 PASSED ON IA-II, UNDER ORDER 39 RULE 1 AND 2 OF CPC, VIDE ANNEXURE-'AD' AND CONSEQUENTLY TO SET ASIDE THE ORDER DATED 21.04.2023, PASSED BY THE IV ADDITIONAL SENIOR CIVIL JUDGE BANGALORE RURAL DISTRICT, BANGALORE, IN O.S.NO.26/2021, PASSED ON IA-II, UNDER ORDER 39 RULE 1 & 2 OF CPC., VIDE ANNEXURE-'AD', ETC.
THIS PETITION COMING ON FOR ORDERS, THROUGH PHYSICAL HEARING/VIDEO CONFERENCING THIS DAY, THE COURT MADE THE FOLLOWING:
NC: 2024:KHC:19603 WP No. 8853 of 2024
ORDER
O.S.No.26/2021 pending on the file of IV Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru. In the said original suit, the following prayers are made:
"Wherefore, the plaintiffs most humbly pray that this Hon'ble Court may be pleased to pass a judgment and decree
SCHEDULE PROPERTY
All that part and parcel of the land bearing Sy.No.56, measuring 1 acre 37 guntas, situated at Kumbena
Agrahara Village, Bidarahalli Hobli, Bangalore East Taluk, Bengaluru and bounded on:
East by : Government Road West by : Land of belongs to Narayana Reddy North by : Remaining land in same Sy.No South by : Land belongs to Sri. Shyamanna”
Along with the plaint, the plaintiffs have also filed two applications under Order 39 Rule 1 and 2 read with Section 151 of CPC with the following prayer:
"For the reasons stated in the accompanying affidavit, the Plaintiff prays that this Hon'ble Court may be pleased to pass an exparte ad-interim order of Temporary Injunction restraining the Defendants their agents, attorneys are anybody claiming under them or for them, from changing the nature of the suit schedule property in any manner, till the disposal of the above case, in the interest of justice and equity."
"For the reasons stated in the accompanying affidavit, the Plaintiff prays that this Hon'ble Court may be pleased to pass an exparte ad-interim order of Temporary Injunction restraining the Defendants their agents, attorneys are anybody claiming under them or for them, from alienating or encumbering the suit schedule property in favour of any third parties, in any manner, till the disposal of the above case, in the interest of justice and equity."
NC: 2024:KHC:19603 WP No. 8853 of 2024
2. The trial court rejected the application-I.A.No.1 and allowed I.A.No.2 by passing the following order:
"ORDER
IA No.I filed u/o 39 rules 1 and 2 of CPC by the plaintiffs is hereby rejected with costs.
IA No.II filed u/o 39 rules 1 and 2 of CPC by the plaintiffs is hereby allowed with costs.
In the result defendants or their agents or anybody who claiming through them are hereby temporarily restrained from selling or creating any third party rights over schedule property till disposal of the suit.
Cost, amendment and amended w/s by 04.07.2023."
Judge, Bengaluru Rural District and the order of the trial court has been upheld in the said appeal and the following order has been passed:
"::ORDER ::
The appeal preferred by the appellants/defendant No.1 to 7 under Order 43 Rule 1(r) of C.P.C is dismissed.
The orders passed on I.A.No.2 by the learned VI Addl. Senior Civil Judge, Bengaluru Rural District, Bengaluru in O.S.No.26/2021 dated 21-04-2023 is confirmed.
No order as to cost.
NC: 2024:KHC:19603 WP No. 8853 of 2024
Office is hereby directed to send a copy of judgment to the learned trial court forthwith."
Aggrieved by the same, the present writ petition is filed by defendant nos.1 to 7 with the following prayer:
"Wherefore, the petitioners pray that this Hon'ble court be please to: -
{a} To issue a writ or nature of Certiorari or any other appropriate writ order or direction thereby quashing the order dated 21.04.2023, passed by the IV Additional Senior Civil Judge Bangalore Rural District, Bangalore, in OS No.26/2021, passed on IA-II, under order 39 rule 1 & 2 of CPC, vide Annexure-'AD' and consequently to setaside the order dated 21.04.2023, passed by the IV Additional Senior Civil Judge Bangalore Rural District, Bangalore, in OS No.26/2021, passed on IA-II, under order 39 rule 1 & 2 of CPC, vide Annexure-'AD'
{b} To issue a writ or nature of Certiorari or any other appropriate writ order or direction thereby quashing the order dated 26.09.2023, passed by the IX Additional District and Sessions Judge, Bangalore, Rural District, Bangalore, in MA No.47/2023 vide Annexure-'AG" and consequently set-aside the order dated 26.09.2023, passed by the IX Additional District and Sessions Judge, Bangalore, Rural District, Bangalore, in MA No.47/2023, vide Annexure AG and dismiss the IA-II, under order 39 Rule 1 & 2 of CPC, in OS No.26/2021, on the file of IV Additional Senior Civil Judge Bangalore Rural District, Bangalore, by allowing the above petition.
NC: 2024:KHC:19603 WP No. 8853 of 2024
(c)To pass such other suitable order as this Hon'ble court may deem fit in the circumstances of the case and in the interest of justice."
4. The brief facts of the case are as under:
Defendant nos.1 to 7 entered into a joint development agreement with defendant no.8 to develop the suit schedule property and after completion of the construction and issuance of occupancy certificate on 20.06.2020, the plaintiffs filed the original suit on 02.01.2021 with the prayers mentioned in para no.1 supra.
The trial court and the First Appellate Court, based on the materials produced before them, came to the conclusion that the plaintiffs have made out a prima facie case to show that they have some right, title and interest over the suit schedule property as the apartment complex has been
completely constructed and some of the flats have already been alienated, dismissed the first application filed to restrain the defendants from changing the nature of the property and allowed the second application which was filed to restrain the defendants from alienating any portion of the suit schedule property. Aggrieved by the same, the present writ petition is filed.
defendants have been restrained from alienating any portion of the suit schedule property.
the plaintiffs have prayed not only for a declaration that they
NC: 2024:KHC:19603 WP No. 8853 of 2024
are the owners of the property, but have also contended that they are in peaceful possession and enjoyment of the suit schedule property. The very fact that defendant nos.1 to 7 entered into a joint development agreement with defendant no.8 and the developer completed the construction and defendant no.8 has alienated his share of the suit schedule property and the other defendants are said to have alienated a portion of their property falsifies the claim of the plaintiffs that they are in peaceful possession and enjoyment of the suit schedule property.
opinion that it would be appropriate to modify the impugned orders wherein any future alienation to be made by the petitioners or respondent no.5 herein shall be subject to the result of the original suit in O.S.No.26/2021 pending on the file of IV Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru. Hence, the following:
ORDER
Any future alienation to be made in respect of the suit schedule property by the petitioners or respondent no.5 herein shall be subject to the result of O.S.No.26/2021 pending on the file of IV Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru. The impugned orders stand modified accordingly.
The writ petition stands disposed of accordingly.
hkh.
Sd/JUDGE
1 issue framed by the court
Were the trial and appellate courts correct in restraining defendants from alienating the suit schedule property pending suit?
4 provisions across 2 enactments
Smt. M. Sathyavathi
Smt. Susheelamma
Smt. M. Prema
Sri K.M. Ravindra
K.R. Chandana
K.R. Shreyas
M.I. Arun
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
