IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MISCELLANEOUS FIRST APPEAL NO.5389 OF 2019(CPC) BETWEEN M/s. S.N.S.Plaza, A registered partnership firm, Having its office at No.32, 33 & 34, S.N.S.Chambers, Plot No.239, Sankey Road, Sadashivnagar, Bengaluru-560080.
Represented by its Partner, Mr. Nariandas Bodaram S/o. Late Sri. Bodaram Ahuja, Aged about 80 years, R/at No.35, 1st Cross, Srikantaiah Layout, Crescent Road, Bengaluru-560001.
(By Sri.Badri Vishal, Advocate) AND Smt. Parvathi V. Pandit, W/o. Late V.S.Pandit, Since dead, Represented by her LRS Respondent No.1 & No.2 1. Lakshmi Vijaya Kumar, D/o. Late V.S.Pandit, Aged about 57 years, …Appellant 2. Mr. Ravi S.V. Pandith, S/o. Late V.S. Pandit, Aged about 53 years, Both residing at No.87, Kumarakrupa Road, High Grounds, Bengaluru-560001.
3. Sri. Aslam Basha, S/o. Sri. Syed Mahaboob, Aged about 47 years, At No.103, ‘A’ Block, Spartan Apartments, Richmond Road, Bengaluru-560025.
(By Sri.K.B.S.Manian, Advocate) …Respondents This MFA is filed under Order 42 Rule 1(r) of CPC, 1908 against the order dated 28.5.2019 passed on I.A.Nos.1, 2 & 4 in O.S.No.691/2012 on the file of the XXI Additional City Civil and Sessions Judge, Bengaluru, dismissing the I.A.Nos.1 & 2 filed under Order 39 Rule 1 & 2 of CPC & allowing the I.A.No.4 filed under Order 39 Rule 5 of CPC.
This MFA coming on for admission, this day, the Court delivered the following :
JUDGMENT The plaintiff in O.S.691/2012 on the file of City Civil Court has preferred this appeal questioning the correctness and legality of dismissing their applications, I.A.1 and I.A.2 filed under Order 39 Rules 1 and 2 of Code of Civil Procedure (‘CPC’ for short) and granting the defendants’ application, I.A.4 filed under Order 39 Rule 4 of CPC by order dated 28.5.2019.
2. I have heard the arguments of learned counsel for appellant/plaintiff and respondents/defendants.
3. The plaintiff’s case in brief is that Sri M.S.Pandit purchased a property bearing No. 40, Kumara Krupa Road, High Grounds, Bengaluru, measuring 750 square yards from one D.K.Seshadri under a sale deed dated 3.9.1946. Again, on 28.1.1957, he purchased adjacent property bearing No. 41 from D.K.Seshadri. On 30.4.1959, he made a settlement of his properties among his three sons, viz., Sri V.S.Pandit, B.S.Pandit and S.S.Pandit. Sri B.S.Pandit and S.S.Pandit were together allotted a portion of property measuring 135 x 140 feet, and V.S.Pandit was given property No.40, which according to plaintiff was substantially higher in value. Adjacent to these properties, certain extent of marginal land was in existence. Sri M.S.Pandit during his life time applied to the CITB seeking allotment of 1060 square yards of marginal land. But he died before allotment was made, and thereafter, since Sri V.S.Pandit gave no objection for allotment of 1060 square yards to his brothers, Sri B.S.Pandit and Sri S.S.Pandit. The CITB executed sale deed in respect of 1060 square yards bearing No. 22/1, in favour of the latter on 28.11.1979. The plaintiff states that Sri M.S.Pandit sought allotment of another marginal land measuring 337 square yards, but the CITB did not allot this land, as according to it, 337 square yards of land was a part of 1060 square yards, and the CITB made it very clear that 337 square yards of land did not exist at all.
4. Sri B.S.Pandit died unmarried on 15.7.1981 leaving behind Shyamala Venkatadri and S.S.Pandit as his heirs. As they became absolute owners of these two items of property, they became partners of the plaintiff firm which was constituted on 1.10.1985. At that time they invested a portion of their entire property in the partnership, and thus the plaintiff became the owner of the said property. Shyamala Venkatadri and S.S.Pandit retired from the partnership business, but the properties remained with the firm even after their retirement and reconstitution of the firm two or three times thereafter. It is stated that Sri V.S.Pandit filed a suit for partition, O.S.6027/1980 in respect of 1060 square yards of property, but it was dismissed, and the appeal RFA 222/1984 preferred by him was also dismissed. In spite of this and although the CITB had made it very clear that 337 square yards of land did not exist, Sri V.S.Pandit executed a gift deed on 31.1.2007 in favour of his wife in respect of 337 square yards. It was a fraudulent transaction. The plaintiff continued to be in possession of 1060 square yards of property. Defendants 1 to 3 also filed another suit, O.S.1292/1998 although the suit O.S.6027/1980 filed by V.S.Pandit had been dismissed. This being the background, based on a general power of attorney said to have been executed by S.S.Pandit in favour of his son Chetan S Pandit, the latter executed a release deed in favour of Sri V.S.Pandit on 8.12.2003, releasing his rights with respect to 337 square yards of property, which was not transferred by the CITB as such property did not exist. The release deed also makes a reference to 212 square yards of property the claim over which had been rejected by the courts stating that the property belonged to Shyamala Venkatadri and S.S.Pandit. The plaintiff states that the release deed is absolutely void and that the defendants 1 to 3 started interfering with their possession of plaint schedule properties by disputing their title and that they also attempted to sell them. Hence the plaintiff brought a suit seeking declaration of their title over plaint schedule ‘A’ property and permanent injunction in respect of plaint ‘B’ schedule property. They also made applications for grant of temporary injunction pending disposal of the suit for restraining the defendants from interfering with their possession of ‘A’ and ‘B’ schedule properties and alienating schedule ‘A’ property.
5. The main defence is that Sri S.S.Pandit, represented by his power of attorney holder and elder son Sri Chetan S Pandit, on 8.12.2003, executed a release deed in respect of his brother Sri V.S.Pandit in respect of 212 square yards of land. Later on Sri S.S.Pandit and Shyamala Venkatadri filed a suit, O.S.1566/2007 against Chetan S Pandit and V.S.Pandit for cancellation of release deed, but by judgment dated 7.11.2015, the City Civil Court dismissed the suit. The plaintiff has suppressed the material fact. The plaintiff who traces its title through S.S.Pandit and Shyamala Venkatadri cannot take a contrary stand. It is bound by the decree. Moreover in the release deed, it is also recited that S.S.Pandit said no objection for 337 square yards of land being conveyed to V.S.Pandit by the BDA and accordingly the BDA executed a sale deed dated 28.12.2012 in favour of Smt. Parvati Pandit W/o. V.S.Pandit. Then the plaintiff challenged the sale deed executed by the BDA by filing a Writ Petition 22277/2016. The interim order granted in the Writ Petition was vacated later on and this order was challenged by filing Writ Appeal, which was also dismissed. The BDA conducted inspection and submitted a report confirming existence of marginal land of 337 square yards. Therefore the plaintiff has no manner of right over 337 square yards and 212 square yards of land.
6. For vacating the order of temporary injunction, the trial court has held that clause 22 of the release deed makes it very clear that V.S.Pandit has right over 337 Square yards of land, that the plaintiff has suppressed the fact of dismissal of the suit O.S.1566/2007 with regard to cancellation of the release deed and that the plaintiff has not produced any material for having transferred title in its favour. According to Section 5 of the Transfer of Property Act, there must be registered deed of transfer, but the plaintiff claims right only on the basis of deed of reconstitution of partnership and therefore it is not possible to hold that the plaintiff has right over plaint schedule properties; thus there is no prima facie case.
7. If the reasons assigned by trial court are seen, though it has wrongly held that registered deed of conveyance was necessary for upholding plaintiff’s right in respect of property brought into corpus of the partnership firm, the other finding based on clause 22 of the release deed cannot be said to be incorrect. Clause 22 just states that V.S.Pandit may get conveyance of 337 square yards of land from the BDA and for this, the releaser i.e., S.S.Pandit had no objection. The main argument of learned counsel for appellant is that 337 square yards of land does not exist at all in view of a clear endorsement given by the CITB.
8. But this argument is difficult to be accepted because according to a spot inspection report dated 2.7.2012 conducted by an engineer of the BDA, 1060 square yards of land and 337 square yards of land are different. Then on 28.12.2012, the BDA executed a sale deed in respect of 337 square yards of land in favour of Parvati Pandit W/o V.S.Pandit. If 337 square yards of land does not exist, the BDA would not have executed sale deed. That apart, in the judgment in O.S.1566/2007, there is a clear reference to admission given by PW1 i.e., S.S.Pandit about separate existence of 337 square yards of land. Conveyance of 212 square yards of land out of 337 square yards of land to Smt. Parvati Pandit by the BDA was challenged in a Writ petition; The vacation of interim order granted there was challenged in a Writ Appeal which was also dismissed. Therefore the plaintiff’s cannot contend that there does not exist 337 square yards of land.
9. With regard to another piece of land which is subject matter of release deed, it appears to be a portion of 1060 square yards of land. It appears that S.S.Pandit and Shyamala Seshadri did not invest their entire property by way of their contribution to partnership. What was brought into corpus of the firm was only a portion measuring 3600 square feet as can be seen from the sale deed dated 26.11.2005, produced by the plaintiff. Probably in respect of 212 square yards that remained thereafter might have been released by S.S.Pandit. This is the picture that emerges if case put forward by both sides is assessed. Therefore it is difficult to accept the case of the plaintiff at this stage. It may be true, as argued by the appellant’s counsel, that the ad interim order granted by the trial court was in force for considerable time and that the defendants sought its vacation belatedly, but it cannot be a ground for sustaining the order of temporary injunction when apparently, prima facie case does not appear to exist. I do not think that the trial court has committed any error in vacating order of temporary injunction. Appeal fails and it is dismissed with costs.
ckl SD/- JUDGE