IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MISCELLANEOUS FIRST APPEAL No.8499 OF 2018 (CPC) BETWEEN A.Rangaswamy, S/o. Late Akambaram Aged about 67 years, R/at No.49/23, 9th Cross, Magadi Road, Bengaluru-560028.
(By Sri. K.B.S.Manian, Advocate) AND 1. Shivaraj, Aged about 40 years, Father name not known to the plaintiff.
2. Yashoda N.C., Aged about 48 years, W/o. Shivaraj, Both R1 & R2 are R/at 64/2, 2nd Cross, Minaj Nagar, J P Nagar, Bengaluru-560060.
3. Mirle Varadaraju, Aged Major, Father name not known to appellant …Appellant No.544, 5th Main, Kengeri Satellite Town, Bengaluru-560060.
4. R.Manjunath, Aged Major, Father name not known to appellant No.1174, Paduvana Road, 1st Cross Road IV Stage, T.K.Layout, Kuvempu Nagar, Mysore-570022.
…Respondents (By Sri. Sharath S. Gowda, Advocate for R1, R2 & R3) This MFA is filed under Order 43 Rule 1(r) of CPC, 1908 against the order dated 10.10.2018 passed on I.A.No.1 in O.S.No.26160/2018 on the file of the LVII Additional City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru (CCH No.58), rejecting I.A.No.1 filed under order 39 Rule 1 & 2 CPC.
This MFA coming on for final disposal this day, the court delivered the following:
JUDGMENT The plaintiff in O.S.26160/2018 has preferred this appeal questioning the correctness of the order dated 10.10.2018 on I.A.No.1 filed under Order 39 Rules 1 and 2 of CPC. The learned trial judge has dismissed the application.
2. I have heard the arguments of learned counsel for the appellant and the respondent. Elaborate reasons for modifying the impugned order are not necessary in view of my order in MFA 3775/2019 and connected matters. In the present appeal the plaintiff claims to be an allottee of residential site No.633 from REMCO (BHEL) House Building Co-operative Society Limited. The acquisition in favour of this society was quashed by the Hon’ble Supreme Court. Despite the quashing, the Supreme Court permitted the society to enter into private negotiations with the landowners and thus the society paid additional consideration to the landowners and obtained from them declaration-cum- ratification deeds from the landowners in the year 2000. It is stated that thereafter the plaintiff was allotted a site. When the plaintiff faced interference to his possession by the defendants, they brought the suit for possession. Along with the plaint the plaintiff filed an application to restrain the defendants from changing the nature of the suit property.
3. The trial court holding that the plaintiff has not made out a prima facie case for grant of temporary injunction, further observed that the plaintiff were to succeed in the suit, the entire property would be ordered to be delivered to him and in that event the defendants will lose their right to claim value of the improvements made by them. Any construction that the defendants undertake will be at their risk. Therefore, the application came to be rejected.
4. The reasons assigned by me in MFA 3775/2019 hold good here also. In those appeals acquisition in favour of Gavipuram Extension House Building Co-operative Society was quashed. The facts and circumstances involved in this appeal are identical to the circumstances in the other appeals; if the suits from which those appeals have arisen are for permanent injunction, here this appeal has arisen from a suit for possession. It is not the defendants’ case that they want to raise a construction. They have contended that suit for possession without seeking the relief of declaration of title is not maintainable and that the plaint in suit O.S.2029/2017 filed by the plaintiff earlier had been rejected, and therefore the present suit is hit by Order II Rule 2 of CPC. Certainly these aspects do have a bearing on the final disposal of suit, but the present suit is for possession based on title, and unless title is established by the plaintiff, he does not get possession. This being the position, it is to be stated that the nature of the property must be preserved so that the interest of both sides is protected. The trial court ought to have adopted this approach. Hence, this appeal is allowed. The order impugned is set aside. Application for temporary injunction filed by the plaintiff/appellant is allowed. The defendants are restrained from changing or altering the nature of suit property.
ckl Sd/- JUDGE