IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR MISCELLANEOUS FIRST APPEAL NO. 8306 OF 2016 C/W MISCELLANEOUS FIRST APPEAL NO.8307 OF 2016 (CPC) BETWEEN:
1. SMT. S.V. SUMITHRA BAI W/O. LATE YESHWANTH RAO S.K. AGED ABOUT 62 YEARS 2. SRI BALAKRISHNA S.Y.
S/O. LATE YESHWANTH RAO S.K. AGED ABOUT 37 YEARS 3. SRI BALACHANDER S.Y.
S/O. LATE YESHWANTH RAO S.K. AGED ABOUT 35 YEARS 4. SRI BALASHANKAR S.Y.
S/O. LATE YESHWANTH RAO S.K. AGED ABOUT 32 YEARS ALL ARE R/AT NO.16/2 17TH ‘E’ CROSS INDIRANAGAR 2ND STAGE CMH ROAD BENGALURU – 560 038 ALL ARE REPRESENTED BY THEIR GPA HOLDER SRI JAYARAJ D., S/O. DHANAYYA R/AT NO.25/1, 8TH CROSS MUNINANJAPPA BLOCK DINNUR, R.T. NAGAR POST BENGALURU – 560 032 ... APPELLANTS COMMON (BY SRI M.D.RAGHUNATH, ADVOCATE FOR LEGAL AXIS) AND:
MR. LAVINATH BASTIAN S/O. MR. M. BASTIAN AGED ABOUT 62 YEARS R/AT NO.241, 20TH ‘C’ CROSS VIVEKNAGAR POST, EJIPURA BENGALURU – 560 047 ... RESPONDENT COMMON (BY SRI PRASHANTH N. HEGDE, ADVOCATE) ---
THESE MISCELLANEOUS FIRST APPEALS ARE FILED UNDER ORDER 43 RULE 1(r) OF CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIDE THE ORDER DATED 02.11.2016 PASSED BY THE COURT OF LVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU IN O.S.NO.25437/2016 ON I.A.NOS.1 AND 2 AND ETC.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
COMMON JUDGMENT Heard the learned counsel for the appellants and the learned counsel for the respondent.
2. For the sake of convenience, the parties will be referred to as they are described in the Court below.
3. This is an appeal filed by the plaintiffs.
4. The plaintiffs have filed a suit for the relief of declaration that they are the absolute owners of the suit schedule property and the second relief is for a direction to the defendant to surrender possession of the suit schedule property for demolition of the illegal structure put up on it and also for the payment of damages at Rs.30,000/- per month from the date of the suit till surrender. The plaintiffs filed an application-IA.No.1 under Order XXXIX Rules 1 and 2 of CPC for an order restraining the defendant from alienating, encumbering, leasing and mortgaging etc. the suit schedule property till the disposal of the suit. The defendant filed his written statement and objections to the said application. The defendant has also filed an application-IA.No.2 under Order XXXIX Rule 4 of CPC for an order of vacating the ex parte temporary injunction granted in favour of the plaintiffs. After hearing the parties, the trial Court dismissed the application- IA.No.1 for injunction filed by the plaintiffs and allowed the application-IA.No.2 for vacating the injunction filed by the defendant.
5. Challenging the correctness and validity of the order passed on the applications-IA.Nos.1 and 2, the plaintiffs are before this Court in these appeals.
6. It is the case of the plaintiffs that one, Sri Yeshwant Rao Krishna Rao Sutrave was the absolute owner of the suit schedule property having acquired the same by way of a registered sale deed dated 10.06.1983. After the death of Sri Yeshwant Rao Krishna Rao Sutrave, the plaintiffs succeeded to his estate and accordingly, they became the owners of the suit schedule property. The plaintiffs got the khatha transferred in the name of the first plaintiff and paid the taxes till date. The plaintiffs allege that the defendant trespassed into the suit schedule property and he is claiming title over the same. The plaintiffs made verification in the Sub- Registrar’s office. They came to know that the defendant has purchased the suit schedule property on 13.02.2007 from one Smt.Chikkamuniyamma and that the sale deed is not binding on the plaintiffs for the reason that the husband of the first plaintiff Sri Yeshwant Rao Krishna Rao Sutrave had purchased the property from the said Smt.Chikkamuniyamma way back on 10.06.1983 and the same Chikkamuniyamma has sold the property to the defendant on 13.02.2007. Therefore, the said Chikkamuniyamma had no subsisting right to sell the property or to alienate the same to the defendant. Hence, the said sale is invalid and not binding on the plaintiffs as the defendant is not a bona fide purchaser.
7. The plaintiffs state that they came to know about the trespass by the defendant recently and after applying the certified copies on 24.05.2014, issued a legal notice on 03.02.2016. Accordingly, the plaintiffs have filed a suit for declaration, possession and damages.
8. The defendant submits that he is the absolute owner of the suit schedule property by virtue of a registered sale deed from Smt.Chikkamuniyamma and he has purchased the same after conducting due diligence with regard to the property of Smt.Chikkamuniyamma. Further, the defendant submits that prior to the purchase of the same, he had taken out a newspaper publication with regard to any objections for purchase of the said property. Since, none had objected to register the same, the defendant had constructed a residential building in the year 2007 itself and has obtained electricity connection from BESCOM and water connection from BWSSB and he is also paying taxes regularly from the date of purchase to till date for the suit schedule property. When the defendant claims that the plaintiffs have misunderstood the identity of the property and are staking claim on the defendant’s property with a mala fide intention. Accordingly, he filed an application for vacating injunction.
9. The learned counsel for the plaintiffs/appellants submit that they are the lawful owners of the suit schedule property. The husband of the first plaintiff/appellant had purchased the property and pursuant to his death, the plaintiff was not aware with regard to the property of her deceased husband. Hence, they could not go to the suit schedule property to monitor regularly. He further submits that, when Smt.Chikkamuniyamma had sold the property to the husband of the first plaintiff/appellant, the question of Smt.Chikkamuniyamma once again selling the property would not arise as the same is invalid and not a legitimate transaction. He submits that immediately as the plaintiffs came to know about the transaction of the defendant, they rushed to the Court below by filing a suit for declaration and to secure an order of injunction.
10. Per contra, the learned counsel for the defendant/ respondent submits that the defendant has been in possession, enjoyment and ownership of the suit schedule property from the year 2007. Having constructed building on the suit schedule property over a period of two years, the defendant obtained necessary permission for licence from the Electricity Department as well as the BWSSB and he has been peacefully residing in the suit schedule property.
11. After giving anxious consideration to the submissions made by the learned counsel for the appellants and the learned counsel for the respondent and the materials placed before the Court, it is apparent on the face of the record that both the plaintiffs and the defendant are staking claims to the same property as per their schedule in the respective sale deeds. What is more glaring in this statement made by the plaintiffs is that no specific date is stated for trespass by the defendant on the suit schedule property. Though the plaintiff has come to know about the said trespass and construction and possession of the defendant on 24.05.2014, the plaintiffs got the legal notice issued on 03.02.2016 thereby keeping silent for almost two years after the alleged knowledge. The defendant has been peacefully residing in the suit schedule property for almost 10 years as on the date of filing of the suit. What needs to be appreciated while deciding the application under Order XXXIX Rules 1 and 2 of CPC is whether the plaintiffs have made a prima facie case and whether the balance of convenience is made out and whether there is any hardship and injury is caused. It is noticed that though there is an enormous delay by the plaintiffs in approaching the Court below for securing an order of injunction and the plaintiffs and the defendant are claiming right over the same property by virtue of the registered deed, in the interest of justice and equity, it will be appropriate at this stage to pass an equitable order. Therefore, considering the facts and circumstances, I pass the following order:
ORDER Status quo shall be maintained by the defendant with regard to alienation of the suit schedule property. It is submitted across the Bar that presently, the suit is posted for defendant’s evidence. Considering the nature of the case, the trial Court is directed to dispose of the main suit expeditiously.
It is needless to mention that no opinion is expressed by this Court with regard to the merits of the case.
The contentions stated here are only with regard to deciding the applications filed in the suit.
Accordingly, these appeals are disposed of. No costs.
Sd/- JUDGE LB VK