IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL NO.3454 OF 2019 BETWEEN:
A.RAJENDRA KUMAR S/O LATE ANANTHAPADMANABHACHAR AGED ABOUT 54 YEARS RESIDING AT NO.366 NAGARBHAVI 1ST MAIN ROAD PANCHASHEELA NAGAR BENGALURU-560 072 … APPELLANT (BY S.G.PARTHASARATHY, ADV.) AND:
1. SMT KAMALAMMA W/O LATE NAGARAJ AGED ABOUT 67 YEARS RESIDING AT NO.364 NAGARABHAVI 1ST MAIN ROAD PANCHASHEELA NAGAR BENGALURU-560 072 2. SRI HEMANTH KUMAR S/O G.S.SUNDAR AGED ABOUT 29 YEARS RESIDING AT NO.176/B 10TH CROSS, BAPUJI NAGARA MYSORE ROAD BENGALURU-560 026 … RESPONDENTS (BY SRI NARASIMHA PRASAD S.D., ADV.) THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 09.04.2019 PASSED BY THE 12TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE IN O.S.NO.1573/2017 ON I.A.NOS.4, 5 AND 7 AND CONSEQUENTLY ALLOW I.A.NOS.4 AND 5 AND DISMISS I.A.NO.7.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed challenging the order dated 09.04.2019 passed by the XII Additional City Civil and Sessions Judge, Bengaluru on I.A.Nos.4, 5 and 7 in O.S.No.1573/2017.
2. By the impugned order the trial Court has dismissed I.A.Nos.4 and 5 filed by the appellant for grant of injunction against the respondents against alienation of the property and from putting up the construction. I.A.No.7 was filed by defendants/respondents to vacate the interim order of status quo granted by the trial Court.
3. The appellant filed O.S.No.1573/2017 against the respondents for declaration of his title and that the sale deed dated 30.01.2017 executed by respondent No.1 in favour of respondent No.2 is null and void and for injunction and alternatively for possession.
4. The subject matter of the suit was the site bearing No.364 measuring 40ft X 30ft situated at Malagalu village, Bengaluru North Taluk.
5. The appellant claimed that the suit schedule property was granted to his maternal grand mother Sheshamma on 12.06.1974 and after her death, his mother Sharadamma succeeded to the said property. He contended that his mother is also not alive and therefore, by succession he has become the absolute owner of the said property.
6. Defendants contested the suit denying the title of the plaintiff and claimed that the said property was granted to defendant No.1 on 21.04.1992.
7. On 15.04.2017, the trial Court had granted ex-parte temporary injunction against the defendants. On 28.11.2017, the trial Court dismissed I.A.No.3 filed by the plaintiff for extension of interim order. Therefore, the plaintiff filed I.A.Nos.4 and 5 seeking injunction as aforesaid.
8. On 16.01.2018, the plaintiff reported that defendant No.2 has demolished the building. Under such circumstances, the trial Court directed the parties not to carryout any work either construction, or otherwise till further orders. Thereafter, the defendants filed the written statement and objections to I.A.Nos.4 and 5 and I.A.No.7 for vacating the interim order.
9. The trial Court after hearing the parties by the impugned order dismissed I.A.Nos.4 and 5 and allowed I.A.No.7 and vacated the interim order.
10. There is no dispute that in respect of the very same property mother of the plaintiff/appellant filed O.S.No.9409/2001 before the XXXIII Additional City Civil Judge, Bengaluru for declaration and injuction against defendant No.1 setting up the same claim. The source of the title alleged in that suit was also the same. The said suit was dismissed on adjudication.
11. Against the said judgment and decree, the plaintiff therein filed R.F.A.No.1964/2011. The said matter is pending before this Court. It is submitted that the present appellant is prosecuting that appeal as a legal representative of his mother Sharadamma. Pending that appeal, defendant No.2 has purchased the property on 30.01.2017.
12. When the matter was subjudice before this Court in R.F.A.No.1964/2011, the appellant has filed O.S.No.1573/2017. Therefore, the suit itself is hit by the Principles of subjudice. Prima facie case includes the prima facie maintainability of the suit. Considering those aspects, the trial Court dismissed the appellants injunction applications and allowed the application of the respondents for vacating the interim order.
13. This is not a fit case to admit. Therefore, the appeal dismissed.
In view of the dismissal of the appeal, I.A.No.1/2019 stood disposed of.
Sd/- JUDGE KG