IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF MAY, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A. NO.4232 OF 2018 (CPC) BETWEEN:
1. SMT.SHARADAMMA, W/O LATE NARAYANAPPA, AGED ABOUT 69 YEARS, R/AT NO.924, KONAPPA AGRAHARA, KRISHNA REDDY LAYOUT, ELECTRONIC CITY POST, BENGALURU – 560100.
2. SMT.PREMA, W/O MUNIYAPPA, AGED ABOUT 52 YEARS.
3. SRI MAHADEVA N, S/O LATE NARAYANAPPA, AGED ABOUT 49 YEARS.
4. SRI KRISHNA N, S/O LATE NARAYANAPPA, AGED ABOUT 45 YEARS.
5. SRI SHEKAR N, S/O LATE NARAYANAPPA, AGED ABOUT 42 YEARS.
6. SMT.SHASHIKALA, W/O SREENIVAS, AGED ABOUT 38 YEARS.
7. SMT.CHANDRAKALA DECEASED REPRESENTED BY HER HUSBAND, SRI SIDDIAHA S/O VENKATASAMPPA, AGED ABOUT 42 YEARS.
8. SMT.SHYLAJA, W/O SAMPANGI, AGED ABOUT 36 YEARS, PLAINTIFFS/PETITIONERS 2 TO 8 ARE RESIDING AT NO.924, KONAPPANA AGRAHARA, KRISHNA REDDY LAYOUT, ELECTRONIC CITY, BENGALURU – 560100. …APPELLANTS (BY SRI.S.N.PRASHANTH CHANDRA, ADVOCATE) AND:
1. SRI S SUDHANANDA REDDY, SON OF SRI SEENAPPA, AGED ABOUT 60 YEARS.
2. SMT.RADAMMA, W/O SRI S.SUDHANANDA REDDY, AGED ABOUT 52 YEARS.
3. SRI S KARTHIK, S/O SRI S SUDHANANDA REDDY, AGED ABOUT 28 YEARS.
4. SMT.AMRUTHA, D/O SRI SUDHANANDA REDDY, AGED ABOUT 25 YEARS.
5. SRI CHANDRASHEKARA REDDY, S/O SRI SEENAPPA, AGED ABOUT 56 YEARS. RESPONDENTS 1 TO 5 ARE RESIDING AT GOVINDASHETTYPALYA MAIN ROAD, BASAVA NAGARA, ELECTRONIC CITY 2ND STAGE, BENGALURU – 560011.
6. M/S SRIKRISHNARACHANA DEVELOPERS, REP. BY ITS PARTNERS, SRI PRASANNA N RAJAPUROHIT, SRI B.K.ESHWARA REDDY, FLAT NO.101, GROUND FLOOR, PAVITRA APARTMENTS, ROSE GARDEN STREET, J.P.NAGAR, 7TH PHASE, BENGALURU – 560078. ...RESPONDENTS (BY SRI.PRABHULING K NAVADGI, SENIOR COUNSEL FOR SRI A RAMESH GOWDA FOR R1 TO R4, SMT. M.D.ANURADHA URS, ADVOCATE FOR R6, SRI U.U.SHETTY FOR R5) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 05.04.2018 PASSED ON IA NO.1,2 AND 4 IN O.S.NO.1140/2016 ON THE FILE OF THE 1ST ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, DISMISSING IA NO. 1 AND 2 FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF CPC, ALLOWING IA NO.4 FILED UNDER ORDER 39 RULE 4 READ WITH SECTION 151 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of the learned counsel for the appellant-s and the respondents, heard arguments on merits for final disposal.
02. The appellants are the plaintiffs before the trial Court. MFA is filed by them challenging the rejection of I.As.1 and 2 under Order XXXIX Rules 1 and 2 CPC.
03. The parties herein are referred to as per their ranking before the Court below.
04. The facts briefly stated are that the plaintiffs are the absolute owners of the suit property bearing sy.No.44 (New Sy.No.44/2, 44/7 measuring 1 acre situated at Konappana Agrahara in Bengaluru South Taluk. The father-in-law of plaintiff No.1 and grand father of other plaintiffs namely Muniswamappa had purchased a suit property under the registered sale deed 29.06.1959. After the demise of Muniswamappa, his only son Narayanappa i.e., the husband of the plaintiff No.1 acquired the said property through a Will dated 05.10.1988. After the demise of said Narayanappa the plaintiffs being wife and children have become the owners of the property and they are in possession and enjoyment of the suit schedule property. Even though the father-in-law of plaintiff No.1 had purchased 1 acre land in Sy.No.44 of Konappana Agrahara, the survey number of said 1 acre of land was wrongly mentioned as Sy.No.37/1, but the boundaries of the said 1 acre of land are correctly mentioned in the sale deed. By taking undue advantage of the error crept in mentioning the survey number in registered sale deed dated 29.06.1959, the defendant-respondents 1 to 5 got their names entered in the mutation register and consequent entries are also carried out in the record of rights in respect of suit schedule property. Since there was a interference by the defendants and also the dispute with regard to entries in the revenue records, the appellants filed the suit for declaration and injunction and subsequently, amendment was done for seeking relief for possession of the schedule property.
05. The plaintiffs/appellants had filed I.A.1 and 2 under Order XXXIX Rules 1 and 2 CPC seeking temporary injunction against the defendants/ respondents. Initially the trial Court had granted temporary injunction restraining the defendants/ respondents 1 to 6 from alienating and encumbering the suit schedule property. On appearance, the defendants filed I.A. Nos.1 to 4 for vacating the order of temporary injunction under Order XXXIX Rule 4 of CPC. On hearing both parties, I.A.Nos.1 and 2 filed by the plaintiffs/appellants were rejected and I.A.no.3 filed under Order XXXIX Rule 3 CPC was allowed. The exparte order of temporary injunction granted on 06.08.2016 was vacated. Being aggrieved by the said order, the plaintiffs/appellants have preferred this appeal.
06. The case of the defendant is that the plaintiffs have purchased property bearing No.37/1, not the suit schedule property. The grand father of defendant Nos.1 and 5 namely Nanjappa had acquired different portions of the property in Sy.No.44 of Konappana Agrahara under registered sale deed dated 17.02.1964 and subsequently in a family partition 17 guntas of land in Sy.No.44 was allotted to the share of Seenappa i.e., father of the defendant Nos.1 and 5. During the phodi proceedings, it was noticed that actual extent of land allotted to share of Seenappa in the family partition deed dated 8.8.1966 is 25 guntas and not 17 guntas, subsequently, out of 25 guntas, 24 guntas land in Sy.No.44 (New Sy.no.44/7 was allotted to the share of defendant No.1 and the remaining extent of 1 gunta (New Sy.No.44/2) was allotted to share of defendant No.5. Thereafter, the defendant No.1 got converted the 16 guntas of land out of 24 guntas in Sy.No.44/7 into non agriculture and entered into development agreement with defendant No.6. The defendants have already put up construction of apartments in the said land by investing huge amount and also incurring loan. The property said to have been purchased by the plaintiff-appellants namely Sy.No.37/1 and the suit schedule property are not one and the same. The appellants have made a frivolous claim against the respondents.
07. The grounds urged in the appeal are that the defendants 1 to 5 have no right, title or interest in respect of the suit schedule property. In view of the partition dated 08.08.1966, a portion of the land measuring 17 guntas was allotted to the share of Seenappa. No documents are produced before the trial Court to show that father of defendant No.1 got 25 guntas of land as claimed by them. The property which had fallen to the share of Seenappa was acquired by KIADB way back in the year 1996, the award has been passed and Seenappa had taken compensation. Therefore, the defendants are not left with any land in Sy.No.44. The boundaries of the suit schedule property tallies with the sale deed dated 29.06.1959. Therefore, the order of the trial Court suffers from error apparent from the face of the records. The trial Court has failed to consider the entries in M.R.17/2014-15, which was initially stayed by the Asst. Commissioner but subsequently set aside by the Asst. Commissioner. The reasons given by the trial Court that revenue record reveals that 24 guntas of land out of 25 guntas in Sy.No.44/2 is totally erroneous. The conversion of the land and development made in the said land are not the ground to deny the order of temporary injunction. The name of the defendant No.1 in respect of Sy.No.44/2 and defendant No.5 in respect of Sy.No.44/7 was done as per the M.R.No.17/2014-15, but the same was stayed by the Asst. Commissioner and later it was set aside. The sale deed and record of rights clearly disclose that subject matter of the property is one and the same. The documents clearly reveal that the property of defendants was acquired by KIADB. But the trial Court has failed to consider the same. The trial Court has refused the temporary injunction despite prima-facie case made out by the plaintiffs/appellants, which amounts to failure to exercise the discretion vested with the trial Court. Even if the temporary injunction is not granted, it was incumbent on the trial Court to impose the condition that the person who purchased the property must be made known the pendency of the suit. But no such conditions are imposed. The trial Court has misdirected itself as to the matter in controversy affecting the rights of the plaintiffs/appellants. Thus, the impugned order passed by the trial Court is erroneous and illegal.
08. Heard counsel for both parties. Perused the impugned order and records furnished.
09. Reiterating the contentions made in the appeal memo regarding the aforesaid grounds, the counsel for the appellants would strenuously contend that trial Court has committed error in rejecting the interim applications namely I.A.1 and 2 and allowing the I.A.No.3 filed by the defendants/respondents. The entries made in the revenue records are misconstrued. The trial Court has committed error in coming to the conclusion that the plaintiffs/appellants have no prima- facie case and the balance of convenience and comparative hardship are also in favour of the defendants. Thus, it has resulted in miscarriage of justice. In support of the said contentions he has relied upon the following decisions filed:
a. 1992 (1) SCC 719 – Dalpat Kumar and Another v. Prahlad Singh and others.
b. 2004 (8) SCC 488 – Maharwal Khewaji Trust (REGD) v. Baldev Dass.
c. 2014 SCC On Line KAR 4730 – Mr.L.K.Raju v. R.Srinivas Raju.
d. 2014 SCC On Line KAR 6697 – Mrs.Arti Malhotra v. Mr.S.D.Muthu and Ors.
e. 2010 (15) SCC 735 – M.Supraschand and others v. C.Dhandapani and Ors.
f. 2002 (10) SCC 513 – V.G.Quenim and Another v. Bandekar Brothers.
g. 2012 SCC Online KAR 4621 – Smt.Sowbhagyalakshmi v. Smt Savitramma and Ors.
h. 2014 SCC On Line KAR 3536 – Sri Narayana Rao and Another v. Smt. Kasthoori.
i. ILR 1996 KAR 2352 – Jeevajyothi Ashrama v. B.P.Ramamanohara and Ors.
10. Per contra, the learned counsel for the respondents submits that the suit is barred by limitation as the same is brought after lapse after 58 years from the date of execution of the sale deed. All revenue records namely record of rights, index of land records, RTC mutation registers, sketches and the conversion order clearly goes to prove the ownership of respondent No.1 since more than 50 years. The endorsement issued by the KIADB belies the claim of the appellant that Sy.No.44/2 was acquired as such, the defendants/respondents are not left with any land. The Sy.No.44/2 measures 25 guntas whereas the appellants claim is for 1 acre that too against the revenue records. Originally the Sy.No.44 situated at Konappana Agrahara Bengaluru South Taluk belong to one B.N.Vishwanath. The grand father of Respondent No.1 purchased various extents of lands measuring 1 acre 30 guntas of land and other properties under the registered sale deed dated 17.02.1964. In the family partition, father of respondent No.1 was allotted 17 guntas of land during the phodi proceedings as per akarband the measurement was rectified to 25 guntas of land and the same is reflected in the revenue records namely the document No.10 at page 62. The allegations that the property described in the sale deed dated 29.06.1959 and property Sy.No.44 and its boundaries are one and the same is absolutely false. The appellants’ father-in-law purchased the property from one Sri Abbaiah in respect of Sy.No.37/1 situated at Konappana Agrahara, Bengaluru South Taluk. The vendor of respondents’ grand father is one Sri V.N.Vishwanath, who is the owner of Survey Nos.44, 44/2 and 44/7, situated at Konappana Agrahara. After the lapse of 58 years the appellants are trying to make a claim that the Sy.No.37/1 is wrongly entered in the sale deed dated 29.06.1959 and it should be Sy.No.44. When the previous owners are entirely different, the plaintiffs cannot maintain the suit against these respondents. The appellants have not disputed the entire sy.No.44 belonged to Sri V.N.Vishwananth and the grand father of respondent No.1 purchased the said property from him. The impugned order passed by the trial Court is perfectly legal and justified. There are no valid grounds to interfere with the said order. The appeal deserves to be dismissed.
11. In view of the rival contentions, the points that arise for consideration are that:
i. Whether the trial Court has committed error in rejecting the I.As. filed by the plaintiffs/appellants?
12. The entire case of the plaintiffs/appellants is based on revenue records. According to the appellants the property purchased by their ancestor by name Muniswamappa was 1 acre in Sy.No.37/1, through Sale Deed dated 29.06.1959. But, the Survey number mentioned in the said Sale Deed was wrong, instead of Sy.No.44, it is mentioned as Sy.No.37/1. Till date, no efforts are done for rectification of the survey number in the Sale Deed.
13. The main contention of the plaintiffs/ appellants is that even though, the Survey number in the Sale Deed is wrong, the boundaries will prevail. But, there is no convincing or cogent documentary evidence to prove the said contention. The plaintiffs/appellants have not produced any relevant revenue records to prove that the property purchased through Sale Deed dated 29.06.1959 and the Sy.Nos.44/2 and 44/7 are one and the same.
14. According to the plaintiffs/appellants, their ancestor Muniswamappa’s name was entered in the record of right in respect of Sy.No.44, for the year 1988- 89, as per M.R. No.15/59-60. But, in this document, the name of the Village is struck off and some corrections have been effected. Further, it is only stated as Sy.No.44, without any sub-division. Some of the documents placed on record disclose that the phodi sub-division was done prior to 1983-84 and Survey numbers were given as 44/1A, 44/1A2, 44/1A3 and 44/1A. When the sub-division has already been effected in the year 1983-84, there is no occasion for issuing the record of right for the year 1988-89 showing the Survey number as 44 only. Thus, the documents produced by the plaintiffs/appellants do not clarify as to Sy.No.37/1 was later changed into Sy.No.44. Except, the order of the Assistant Commissioner, there is no other document to create a link between Sy.No.37/1 and Sy.No.44 or Sy.No.44/2 and Sy.No.44/7.
15. The main basis for the claim of the plaintiffs/appellants is the order passed by the Assistant Commissioner Bengaluru South in RA(S) 59/16-17 dated 25.07.2017, wherein, it is observed that as per the Sale Deed dated 29.06.1959, the father-in- law of the plaintiffs/appellants, namely Muniswamappa has purchased the property, but due to oversight or the mistake committed while writing the Survey number, it is wrongly written as Sy.No.37/1 instead of Sy.No.44 and as per the boundaries shown in sale deed, the property purchased tallies with Sy.No.44. It is pertinent to note that originally Sy.No.44 measures 27 acres and 8 guntas prior to 1983, in view of phodi proceedings, Sy.No.44 was sub-divided into Sy.Nos.44/1A, 44/1A2, 44/1A3 and 44/1A. There are no specific reasonings as to how the learned Assistant Commissioner arrived at a conclusion that the property bearing Sy.No.37/1 and Sy.No.44 or Sy.No.44/2 and Sy.No.44/7 are one and the same and the boundaries tally with each other. Thus, the observation made by the learned Assistant Commissioner appears to be baseless. The order dated 25.07.2017 passed by the Assistant Commissioner in M.R. No.RA(S).59/16-17 and 366/2014-15 is challenged in revision by the defendants/respondents. As such, the order of the Assistant Commissioner has not reached finality. Another important aspect to be considered is that after passing of the order dated 25.07.2017 by the Assistant Commissioner in No.RA(S).59/2016-17 and 366/2014-15, when a direction was issued to the Tahasildar to change the khatha in pursuance of the aforesaid order, the Special Tahasildar, Bangalore South Taluk, has sought for clarification stating that as per the records available, the land available is only 25 guntas in Sy.No.44. As such, it is not possible to enter the name of the Appellant No.1 – Smt. Sharadamma, w/o late Narayanappa, for one acre of land in Sy.No.44. Thereafter, once again, the plaintiffs/appellants have approached the Assistant Commissioner for review of the order passed in RA(S).59/2016-17. But the learned Assistant Commissioner passed an order that since the earlier order dated 25.07.2017 in RA(S).59/2016-17 and 366/2014-15 passed by this authority is already under challenge before the Deputy Commissioner, this authority cannot either review or modify the order passed. Further, it is clarified that if the order passed by this authority in the above appeal cannot be given effect, the Special Tahasildar is at liberty either to make necessary representation to the Deputy Commissioner, Bangalore District and obtain appropriate order. Thus, it is evident that, the earlier order dated 25.07.2017 passed by the Assistant Commissioner has not reached finality, but on the basis of the said order, the plaintiffs/appellants are claiming the title over the property bearing Sy.No.44.
16. It is the specific case of the appellants is that the father of defendant Nos.1 and 5 and grandfather of defendant Nos.2 to 4 was allotted 17 guntas of land in Sy.No.44 and the said land was acquired by KIADB. As such, the defendants are left with no properties. In order to prove this contention, the appellants have once again relied on the order dated 25.07.2017 passed by the learned Assistant Commissioner in No.RA(S).59/2016-17 and 366/2014-15. But, in the said order, there is no explanation as to which documents were referred for coming to the conclusion that the said land measuring 17 guntas, was acquired by KIADB and the defendants/respondents have received the compensation in pursuance of the award passed. No doubt, the defendants have produced the award copy in respect of the lands acquired by KIADB, but, there is no specific proof to show that the defendants/respondents had consented for the said acquisition and have received the compensation. On the Contrary the defendants/respondents have produced a document, namely the endorsement dated 21.08.2012 issued by the KIADB, wherein, it is stated that Sy.No.44/2 measuring 24 guntas and Sy.No.47/4 measuring 0.16 guntas and Sy.No.34/4A measuring 1 acre 35 guntas are not included in Government Notification No.CI-7-SPQ/1996 dated 30.09.1997. But, if these lands are required in future for acquisition, the liberty is reserved. It is pertinent to note that the defendant No.1/respondent No.1 had applied for conversion of land measuring 16 guntas in Sy.No.44 and another land bearing Sy.No.34/4A measuring 24 guntas, and same was granted as per the order of the Deputy Commissioner, Bangalore, dated 01.02.2014, which clearly goes to show that the land belonging to the defendants/respondents in Sy.No.44 was not acquired by the KIADB. Hence, the contention of the appellants that in view of the acquisition of 17 guntas of land, the defendants/respondents were left with no property, does not hold good.
17. In a revision appeal No.59/2016, the appellant No.2 – Smt. Prema has stated as under:
“Facts Related to Survey No.34 and 44 of Respondent No. 2, 3 and 4:
It is submitted that, Respondent No. 2’s Grand Father Nanjappa S/o Thimmaiah had purchased the below land:
a) Sy No.44 measuring 0-17 guntas, b) Sy No.44 measuring 0-1 guntas, c) Sy No.44 measuring 1 Acres 12 guntas, d) Sy No.34 measuring 2 Acres 23 guntas, e) Sy No.47 measuring 0-30 guntas f) Sy No.48 measuring 0-12 guntas g) Sy No.48 measuring 0-04 guntas h) Sy No.42 measuring 5 Acres 30 guntas situated at Konappana Agrahara Village, Begur Hobli, Bangalore South Taluk from Sri V.N.Vishwanath.
The said Sri V.N.Vishwanath being the absolute owner of the above land, sold the said land, in favor of Sri Nanjappa S/o Thimmaiha under as Document No.5483/1963-64.
The copy of the sale deed and its typed copy are produced herewith as Annexure-F and F1 Series.
Facts related to Sy No.44:
It is submitted that, Respondent No. 2’s Grand Father Nanjappa S/o Thimmaiha and his three sons (i.e. Seenappa, Sriramppa and Krishnappa) partitioned the properties in the year 08.08.1966 which was duly registered and is produced herewith as Annexure-G.
Seenappa i.e.Respondent No.3 got 17 Guntas in Sy No.44, Situated at Konappa Agrahara Village, Begur Hobli, Bangalore South Taluk, according to Partition deed dated 08.08.1966.
The revenue authority has also mutated the revenue entries in the name of Respondent No.3 i.e.Seenappa S/o Nanjappa by Virtue of M.R.No.3/1967-68.
The RTC extracts evidencing the entries standing in the name of the Respondents No.2’s Father N Seenappa S/o Nanjappa are produced herewith as Annexure – H.”
18. The aforesaid information clearly goes to show that the ancestor of the defendants/respondents had purchased several lands, including Sy.No.44. Later in respect of Sy.No.44, akarband was effected as per order dated 25.05.1966 and Sy.No.44/2 was measuring 25 guntas of land and it was standing in the name of Nanjappa and Sheenappa. This entry in the record of right is not challenged or set aside. Later, out of 25 guntas of land in Sy.No.44/2, 24 guntas of land was allotted to Sudhananda Reddy, defendant No.1 and one gunta of land was allotted to Chandrashekar, defendant No.5. These documents confirm the title of the defendants 1 and 5/respondents 1 and 5.
19. Considering the entire documentary evidence placed on record, the learned trial Judge has observed that the revenue records produced by the contesting defendants reveal that 24 guntas of land in Sy.No.44/2 was standing in the name of defendant No.1 and after phodi, the said portion of the land is changed as Sy.No.44/7 and the remaining extent of 1 gunta in Sy.No.44/2 is presently standing in the name of defendant No.5. Further, it is observed that after conversion of 16 guntas of land in Sy.No.44/7, the defendant No.1 along with other defendants entered into joint development agreement with defendant No.6 and another property bearing Sy.No.34/4A measuring 25 guntas was also included along with Sy.No.44/7 and construction of apartments was done.
20. The Appellants based on some of the records have tried to make out a ground that they have got a better case, but there is no sufficient material evidence to prove their contention. In the instant case, the Appellants have failed to prove prima facie case. Thus, the decisions relied on by the counsel for the appellants are not aptly applicable to the facts of this case.
21. On going through the documentary evidence placed on record by both parties and on reappreciation, this Court is of the view that the findings given by the trial Judge that plaintiffs have not made prima facie case and have failed to prove the balance of convenience and comparative hardship, are proper and justified.
There are no valid grounds to interfere with the impugned order.
Accordingly, the miscellaneous first appeal is dismissed.
Sd/-
JUDGE BSR