IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF FEBRUARY, 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA MISCELLANEOUS FIRST APPEAL NO.652/2017 C/W MISCELLANEOUS FIRST APPEAL NO.1408/2017 IN MFA NO.652/2017 BETWEEN:
1. SMT. SHANTHA, W/O.D.LAKKANNA, AGED ABOUT 61 YEARS, 2. SRI D. LAKKANNA, S/O.SMT.S.SHOBHA, AGED ABOUT 70 YEARS, BOTH ARE R/AT NO.121, 2ND CROSS, 17TH "C" MAIN, 5TH BLOCK, KORAMANGALA, BANGALORE-560095.
(BY SRI G. VEERENDRA BABU, ADVOCATE) AND:
1. SMT. LATHA, W/O.PRAKASH, AGED ABOUT 45 YEARS, ... APPELLANTS R/AT. NO.115, 6TH SECTOR, 10TH MAIN, 14TH CROSS, HSR LAYOUT, BANGALORE-560102.
2. M/S S.J.R. PRIME CORPORATION (P) LTD., OFFICE AT NO.1, SJR PRIMUS, 7TH FLOOR, KORAMANGALA INDUSTRIAL LAYOUT, 7TH BLOCK, KORAMANGALA, BANGALORE-560095.
REPRESENTED BY ITS MANAGING DIRECTOR, SRI.J.VIJAY REDDY.
... RESPONDENTS (BY SRI VASANTH MADHAVA S., ADVOCATE FOR C/R1 ; CP NO.1527/16 PUT UP IN MFA 1408/17) THIS MFA IS FILED UNDER ORDER 43 RULE 1 OF THE CPC, AGAINST THE ORDER DATED:03.12.2016 PASSED ON IA NO.1 IN O.S.NO.440/16 ON THE FILE OF THE 2ND ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, PARTLY ALLOWING IA NO.1 FILED UNDER ORDER 39 RULE 1&2 OF CPC.
IN MFA NO.1408/2017 BETWEEN:
M/S SJR PRIME CORPORATION (P) LTD., NO. 1, SJR PRIMUS, 7TH FLOOR, 7TH BLOCK, KORMANGALA, BENGALURU 560095, REPRESENTED BY ITS MANAGING DIRECTOR, SRI. J VIJAY REDDY.
(BY SRI UDAY HOLLA SR. COUNSEL FOR SRI VIVEK HOLLA, ADVOCATE) ... APPELLANT AND:
1. SMT. LATHA, W/O. D PRAKASH, AGED ABOUT 45 YEARS, RESIDING AT NO. 115, 6TH SECTOR, 10TH MAIN, 14TH CROSS, HSR LAYOUT, BENGALURU 560102.
2. SMT. SHANTHA, W/O. D LAKKANNA, AGED ABOUT 61 YEARS, RESIDING AT NO. 25, KANAKA, 1ST AVENUE, 5TH MAIN ROAD, SUBH ENCLAVE, HARLUR ROAD, OFF SARJAPUR ROAD, BENGALURU 560102.
3. SRI. D LAKAKANNA S/O LATE. DURGAPPA, AGED ABOUT 70 YEARS, RESIDING AT NO. 25, KANANKA, 1ST AVENUE, 5TH MAIN ROAD, SUBH ENCLAVE, HARLUR ROAD, OFF SARJAPUR ROAD, BENGALURU 560102.
... RESPONDENTS (BY SRI S. VASANTH MADAV, ADVOCATE FOR C/R1 ( CP NO.1527/16)) THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 03.12.2016 PASSED ON I.A.NO.1 IN O.S.NO.440/2016 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, BANGALORE RURAL DISTRICT, BENGALURU, ALLOWING I.A.NO.1 FILED U/O 39 RULE 1 & 2 OF CPC.
THESE MFA’s COMING UP FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING.
J U D G M E N T These appeals are filed by the defendants against the order dated 3rd December 2016 on I.A. No.1 made in O.S. No.440/2016 on the file of the II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru allowing the I.A. in part and restraining the defendants by way of Temporary Injunction from alienating or encumbering the suit schedule property to any third party till disposal of the suit.
2. Since in both these appeals, common order passed by the trial Court is challenged, they are taken up together and disposed of by this common Judgment.
3. The 1st respondent in MFA No.1408/2017 who is the plaintiff before the trial Court filed the suit for declaration that he is the absolute owner of the schedule property and consequently cancel the sale deed executed by defendant No.2 on behalf of the plaintiff in favour of defendant No.1 vide document dated 10.8.2011 and for other reliefs.
4. It is the case of the plaintiff that he is the absolute owner of the property in question purchased under the registered sale deed dated 10.11.1995 and he is in possession and enjoyment of the same.
5. The defendants filed the written statement denying the entire plaint averments and contended that the defendants being the absolute owners of the suit schedule property alongwith the adjacent properties, in order to put up a huge residential complex have also secured building plan on 2.4.2013. It is also contended that defendants 1 and 2 being the absolute owners of various properties including the schedule property approached the defendant No.3 in order to jointly develop the property. The defendant No.3 being a bonafide developer after being satisfied with the title and ownership of the defendant Nos.1 and 2 over the schedule property along with adjoining properties, agreed to enter into a registered joint development agreement. It is also contended that by way of abundant caution and also to avoid any unnecessary claims or litigations over the schedule property, the defendant No.3 also sought for confirmation from the earlier owners of the defendant Nos.1 and 2 and their family members and accordingly, the earlier owners of the schedule property from whom Respondent Nos.2 and 3 purchased alongwith their family members executed a registered confirmation deed on 19.12.2012. On these among other grounds, defendants pray for dismissal of the suit.
6. During the pendency of the proceedings, the plaintiff filed an application I.A. No.1 for Temporary Injunction restraining the defendants, their agents, servants or anybody claiming under them from alienating, developing, encumbering or creating any charge in respect of the schedule property, pending disposal of the suit reiterating the averments made in the plaint. The said application was opposed by the defendants reiterating the averments made in the written statement. The trial Court after considering the material on record by the impugned order dated 3.12.2016 allowed the application filed by the plaintiff and granted the order of Temporary Injunction. Hence the present appeals are filed.
7. I have heard the learned counsel for the parties to the lis.
8. Sri Uday Holla, learned counsel appearing for the 3rd defendant/appellant in MFA 1408/2017 vehemently contended that the plaintiff through his power of attorney i.e., defendant No.2 executed a registered sale deed in favour of the defendant No.1 on 10.8.2011 and in pursuance of the said sale deed, the 3rd defendant got confirmation deed from the plaintiff and others in respect of the suit schedule property on 19.12.2012. He further submitted that the appellant/ defendant No.3 being a bonafide developer, after being satisfied with the title and ownership of defendant Nos.1 and 2 over the schedule property, entered into a joint development agreement with them and obtained necessary plan from the jurisdictional authority and proceeded for construction and spent almost a sum of Rs.214 crores. The said material facts have not been considered by the trial Court in the impugned order.
9. Sri G. Veerendra Babu, learned counsel for the defendant Nos.1 and 2 adopted the arguments advanced by the learned senior counsel for the third defendant.
10. Per contra, Sri Vasanth Madav, learned counsel for the plaintiff sought to justify the impugned order and strenuously contended that the plaintiff is questioning the alleged sale deed itself in the suit. He also contended that in the entire sale deed nothing is mentioned with regard to the power of attorney. In the absence of the same, the contention of the learned senior counsel cannot be accepted. Therefore he sought for dismissal of the present Miscellaneous First Appeals.
11. Having heard the learned counsel for the parties to the lis, the only point that arises for consideration in the present appeals is:
Whether the trial Court is justified in passing the impugned order restraining the defendants by way of Temporary Injunction from alienating or encumbering the suit schedule property to any third party till disposal of the suit, in the facts and circumstances of the case ?
12. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record, carefully.
13. The plaintiff filed the suit for declaration and Permanent Injunction and also for cancellation of the sale deed dated 10.8.2011 contending that he is the owner of the property by virtue of the registered sale deed dated 10.11.1995. It is the specific case of the 3rd defendant that the plaintiff through his power of attorney executed a sale deed in favour of the defendant No.1 on 10.8.2011 and in pursuance of the said sale deed, the 3rd defendant got confirmation deed from the plaintiff and others in respect of the suit schedule property on 19.12.2012. Thereafter he obtained necessary plan from the jurisdictional authority and proceeded for construction and spent almost a sum of Rs.214 crores. In the entire impugned order, the sale deed, power of attorney, confirmation deed, the considerable amount spent for the construction and other material documents were not considered by the trial Court in the proper perspective. Some of the material documents were not even referred to in the impugned order. On that ground alone, the impugned order is liable to be set aside.
14. For the reasons stated above, the point raised in the present appeals has to be held in the negative holding that the trial Court is not justified in passing the impugned order without considering the material documents on record before passing the impugned order.
15. In view of the above, the Miscellaneous First Appeals are allowed. The impugned order dated 3.12.2016 on I.A. No.1 in O.S. 440/2016 passed by the II Additional Senior Civil Judge, Bengaluru Rural district is set aside. The matters are remanded to the II Additional Senior Civil Judge, Bengaluru Rural district, Bengaluru, for fresh consideration of I.A. No.1. The trial Court shall provide an opportunity to both the parties and pass orders strictly in accordance with law.
SD/- JUDGE Gss/-