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 MFA NO.3775/2019 (CPC) C/W MFA NO.3777/2019 (CPC), MFA NO.1788/2019 (CPC) AND MFA NO.3767/2019 (CPC) In MFA No.3775/2019 BETWEEN Smt. Shruthi S. Kumar, Wife of Raju, Aged about 28 years, R/at No.382, 21st Cross, 1st & 3rd Block, East Jayanagar, Bengaluru-560094.
(By Sri. P.M.Siddamallappa, Advocate) AND 1. Sri. Srinivas Murthy, Son of Late Venkataswamy, Aged about 38 years, R/at No.42/2, Bhovi Colony, Shankar Road, Mariyappanapalya, Jnanabharathi Layout, Bengaluru-560056.
2. Sri. Shankar, Son of Late Venkataswamy, Aged about 35 years, R/at No.42/2, …Appellant Bhovi Colony, Shankar Road, Mariyappanapalya, Jnanabharathi Layout, Bengaluru-560056.
3. Smt. Gangamma, Daughter of Late Venkataswamy, Aged about 42 years, R/at No.42/2, Bhovi Colony, Shankar Road, Mariyappanapalya, Jnanabharathi Layout, Bengaluru-560056.
4. Smt. Jayamma, Daughter of Late Venkataswamy, Aged about 38 years, R/at No.42/2, Bhovi Colony, Shankar Road, Mariyappanapalya, Jnanabharathi Layout, Bengaluru-560056.
5. Smt. Gangamma, Daughter of Late Venkataswamy, Aged about 27 years, R/at No.42/2, Bhovi Colony, Shankar Road, Mariyappanapalya, Jnanabharathi Layout, Bengaluru-560056.
6. Sri. Somu H., Son of Late H.T.Madappa, Aged about 57 years, R/at No.93/21, ‘Srinidhi Nilaya’, Mariyappanapalya, Jnanabharathi Layout, Bengaluru-560056.
…Respondents (By Sri. Sharath S. Gowda, Advocate, for C/R1 to R6) This MFA is filed under Order 43 Rule 1(r) of CPC against the order dated 27.04.2019, passed on I.A.No.I in O.S.No.25248/2019, on the file of the XIII Additional City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru (CCH- 22), Rejecting the I.A.No.I, filed under Order 39 Rule 1 and 2 of CPC.
In MFA No.3777/2019 BETWEEN Smt. Shruthi S. Kumar, Wife of Raju, Aged about 28 years, R/at No.382, 21st Cross, 1st & 3rd Block, East Jayanagar, Bengaluru-560094.
(By Sri. P.M.Siddamallappa, Advocate) AND 1. Sri. Srinivas Murthy, Son of Late Venkataswamy, Aged about 38 years, R/at No.42/2, Bhovi Colony, Shankar Road, Mariyappanapalya, Jnanabharathi Layout, Bengaluru-560056.
2. Sri. Shankar, Son of Late Venkataswamy, Aged about 35 years, R/at No.42/2, Bhovi Colony, Shankar Road, Mariyappanapalya, …Appellant Jnanabharathi Layout, Bengaluru-560056.
3. Smt. Gangamma, Daughter of Late Venkataswamy, Aged about 42 years, R/at No.42/2, Bhovi Colony, Shankar Road, Mariyappanapalya, Jnanabharathi Layout, Bengaluru-560056.
4. Smt. Jayamma, Daughter of Late Venkataswamy, Aged about 38 years, R/at No.42/2, Bhovi Colony, Shankar Road, Mariyappanapalya, Jnanabharathi Layout, Bengaluru-560056.
5. Smt. Gangamma, Daughter of Late Venkataswamy, Aged about 27 years, R/at No.42/2, Bhovi Colony, Shankar Road, Mariyappanapalya, Jnanabharathi Layout, Bengaluru-560056.
6. Sri. Somu H., Son of Late H.T.Madappa, Aged about 57 years, R/at No.93/21, ‘Srinidhi Nilaya’, Mariyappanapalya, Jnanabharathi Layout, Bengaluru-560056.
…Respondents (By Sri. Sharath S. Gowda, Advocate, for C/R1 to R6) This MFA is filed under Order 43 Rule 1(r) of CPC against the order dated 27.04.2019, passed on I.A.No.II in O.S.No.25248/2019, on the file of the XIII Additional City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru (CCH- 22), allowing the I.A.No.II, filed under Order 39 Rule 1(a) of CPC.
In MFA No.1788/2019 BETWEEN 1. Smt. Gangamma, D/o. Venkataswamappa, Aged about 48 years, 2. Smt. Jayamma, D/o. Late Jayaram, Aged about 41 years, 3. Srinivasamurthy V., S/o. Late Venkataswamappa, Aged about 38 years, 4. Sri. Shankar V., S/o. Late Venkataswamappa, Aged about 35 years, 5. Smt. Gangamma, D/o. Late Jayaram, Aged about 28 years, A1 to A5 are R/at No.228/42, 5th D Cross, P Shankar Road, Mariappanapalya, Gnanabharathi Post, Bengaluru -560056.
(By Sri. Sharath S. Gowda, Advocate) AND …Appellants 1. Dishanka S. Gowda, S/o. Late Sunil Charan R., Aged about 26 years, R/at No.691, 3rd Main, 9th ‘A’ Cross, West of Chord Road, 2nd Stage, Mahalakshmipuram, Bengaluru-560086.
2. Sri. MirleVaradaraj, S/o. Late Boregowda, Aged about 56 years, R/at No.544, 5th Main, Kengeri Upanagar, Bengaluru-560060.
3. Sri. Somu Son of Late Madappa, Aged about 58 years, R/at No.93/21, ‘Sri Nidhi Nilaya’, Mariyappanapalya, Jnanabharathi Layout, Bengaluru-560056.
(By Sri. K.Sreedhar, Advocate for C/R1, Notice to R2 & R3 – dispensed with) …Respondents This MFA is filed under Order 43 Rule 1(r) of CPC against the order dated 19.02.2019, passed on I.A.No.4 in O.S.No.5760/2018, on the file of the XLIV Additional City Civil and Sessions Judge, Bengaluru City (CCH-45), rejecting the I.A.No.4, filed under Order 39 Rule 1A of CPC.
In MFA No.3767/2019 BETWEEN:
1. Venu, S/o. Muniyappa, Aged about 37 years, 2. Muniyappa, S/o. Late Hosalappa, Aged about 69 years, 3. Shankar, S/o. Late Veerabhadrappa, Aged about 42 years, 4. Marilingappa, S/o. Late Veerabhadrappa, Aged about 41 years, 5. Somashekar, S/o. Rudrappa, Aged about 37 years, All appellants residing at No.169, Mallathahalli Village, Bengaluru-560056.
(By Sri. Sharath S. Gowda, Advocate) AND 1. M.N.Srinivas, S/o. Late M.M.Narayan, Aged about 61 years, 2. M.N.Suresh, S/o. Late M.M.Narayan, Aged about 58 years, Both Respondents, R/at No.10, (629), 13th Cross, Vijayanagara, Bengaluru-560040.
…Appellants …Respondents (By Sri. S.H.Somnath, Advocate for R1 and R2) This MFA is filed under Order 43 1(r) read with Section 151 of CPC, against the order dated 12.04.2019 passed on O.S.No.2931/2019 on the file of the XLIV Additional City Civil and Sessions Judge, Bengaluru (CCH-45), issuing exparte order of temporary injunction, I.A. notice and suit summons to defendants if Order 39 Rule 3A is complied with.
These appeals coming on for hearing this day, the Court delivered the following :
JUDGMENT All these appeals are disposed of by a common order as the controversy in them is same. Brief background in all these appeals is as follows : -
2. MFA 3775/2019 and MFA 3777/2019 have arisen out of order dated 27.4.2019 in O.S.25248/2019 on the file of XIII Additional City Civil Court, Bengaluru. The plaintiff is the appellant in both the appeals. This is suit for permanent injunction to restrain the defendants from interfering with plaintiff’s peaceful possession and enjoyment of site No. 37 said to be situate in Gavipuram Extension HSBS Layout. The plaintiff states that her mother was a member of Gavipuram Extension HBCS layout. The Government of Karnataka acquired certain extent of lands in survey numbers 42/65, 42/68, 42/70 of Mallathahalli Village and survey numbers 26/14 (New No. 93), 116, 117, 119, 120, 121 and 124 of Nagadevanahalli Village, in favour of Gavipuram Extension HBCS (called ‘society’ hereafter). Compensation was paid to the landowners. Then the society formed a layout in accordance with BDA approved layout plan and allotted sites to its members and thus the plaintiff’s mother Smt. Lakshmi S Kumar was allotted site No.37. A sale deed was executed in favour of Lakshmi S Kumar by the society on 30.7.2003. It is stated that Smt. Lakshmi S Kumar executed a gift of the said site in favour of the plaintiff on 21.11.2015. The plaintiff claims to be in possession of site No. 37 on the basis of this gift deed and complains of interference by the defendants when she undertook construction of a house in the said site after obtaining approved plan from the City Corporation and loan from a bank.
3. MFA 1788/2019 arises out of an order dated 19.2.2019 in O.S. 5760/2018, on the file of XLIV Additional City Civil Court, on interlocutory applications, I.As 1 and 4 filed under Order XXXIX Rules 1 and 2, and Order XXXIX Rule 1 (a) of CPC respectively. The defendants in this suit are the appellants. The subject matter of this suit is site No.
39. The society allotted this site to Smt. Rajeshwari and then executed a registered sale deed in her favour on 6.9.2002. She gifted this site to her daughter, K.Nandini on 19.11.2009. She sold this site to one M.S.Pratap, who in turn sold it to K.H.Ramaiah. After the death of Ramaiah, the plaintiff got this site on the basis of a release deed dated 27.4.2018. She also complains of interference by the defendants when she started construction of a house in the said site.
4. In MFA 3767/2019, the appellant has challenged the order dated 12.4.2019 on I.A.No.I in O.S.No.2931/2019. The defendants 1 to 5 are the appellants. The subject matter of this suit is site No.4 situated in the layout formed by the society. One Ganesh Babu was the original allottee, the society executed a sale deed in his favour on 21.11.2001. The plaintiffs purchased the said site from Ganesh Babu on 20.2.2013. The plaintiffs, complaining of interference by the defendants with their possession of site No.4, instituted a suit for permanent injunction.
5. In O.S.25248/2019 and O.S.5760/2018 the defendants also made applications under Order 39 Rule 1(a) of Civil Procedure Code. If in O.S.25248/2019, the trial court dismissed the plaintiff’s application for temporary injunction and allowed the defendants’ applications, in O.S.5760/2018, the trial court allowed the plaintiff’s application and dismissed the defendant’s application.
6. In O.S.No.2931/2019, the trial court has not actually disposed of application for temporary injunction on merits. On 12.4.2019 the trial court passed an ex-parte order of temporary injunction against defendant. On 24.4.2019, the defendants entered appearance and filed an application for temporary injunction against plaintiffs. The trial court adjourned the case to 11.6.2019 for consideration of these applications. Since the applications remained undisposed of within thirty days from the date of grant of ex-
parte order, the defendants have preferred the appeal, MFA 3767/2019.
7. In O.S.25248/2019, for denial of an order of temporary injunction in favour of the plaintiff and grant of the same in favour of the defendants, the trial court has mainly assigned the reasons that the acquisition of lands in favour of the society was quashed by this court, that the title of the plaintiff is disputable in view of quashing of acquisition, that the plaintiff has not produced layout plan and if the plaintiff constructs a building, the nature of property will change and the property must be kept in tact without changing its nature. The trial court has held that the plaintiff has failed to make out prime facie case.
8. But in O.S.No.5760/2018, for granting the plaintiff’s application and rejecting the defendants application, the trial court (another court) has held that after quashing of acquisition, the society should have handed over the possession back to the original land owners. There is no document evidencing handing over possession. In this view, possession of plaintiff can be prima facie inferred. If the plaintiff constructs a building, it will be an improvement made to the property. The plaintiff has collected building materials for the purpose of raising construction and obtained permission in that regard also. If injunction is granted against the plaintiff the materials collected by her will go waste and therefore she will be put to hardship. In case the plaintiff fails in the suit, she will be facing the risk of putting up construction and in this view the defendants interest is not at all affected.
9. Sri P.M.Siddamallappa appearing for the appellants in MFA 3775/2019 and 3777/2019 has argued that the trial court has failed to exercise its discretion properly. The appellant in these appeals has made out her possession in respect of site No. 37 in the layout formed by the society. Her mother was the allottee of the said site from the society. The mother executed a registered gift deed on 21.11.2015. She holds BBMP katha in her favour and is paying taxes regularly. These documents establish plaintiff’s possession. The defendants do not have any kind of right or interest. They cannot interfere with plaintiff’s possession. The land was delivered to the possession of society and the defendants did not object for acquisition. They kept quite for many years and only with an intention to extract money from the plaintiff, they tried to interfere with plaintiff’s possession. His further argument is that plaintiff wants to put up a construction of a house. She has taken loan from the bank. She has already spent some money for raising construction. The plaintiff is also ready to give an undertaking that she will not claim equity in case she fails and therefore the impugned order needs to be modified suitably permitting the plaintiff to put up construction. The counsel has also argued that the defendant cannot claim injunction by filing application under Order 39 Rule 1(a) of CPC against the plaintiff.
10. Sri Sharath S Gowda appearing for the appellants in MFA 1788/2019 argues that the land acquired in favour of the society was quashed by this court in W.P.1845/1990. The order in the said writ petition shows that the entire notification in respect of lands in all the survey numbers was quashed. In view of this the society could not have formed a layout and allotted sites to its members. Even if any site had been allotted to the members the same cannot be recognised in the eye of law. After the disposal of W.P.1845/1990, I.A.No.1/2014 was filed by one K.A.Nainan seeking clarification of the order dated 18.1.2000. That application was allowed and a clarification was given that quashing of notification dated 18.1.2000 was in respect of that land which belonged to the writ petitioner. Later on a review petition 1275/2014 was filed seeking review of the order on I.A.1/2014. This review petition was allowed and the original order dated 18.1.2000 was restored. Therefore, it is quite clear that once the entire notification goes, there remained no land with the society for allotment to its members. The land was restored to the original owners who in turn entered into contract with others for selling the land. The appellants are bona fide purchasers from the original owners after acquisition. The respondent claims possession on the basis of release deed. She does not acquire any right or title in respect of site No. 39 as the allotment in favour of Smt. Rajeshwari on 6.9.2002 itself was bad. The plaintiff should not be allowed to construct any building in the said site as the defendant’s interest is rightly involved. The plaintiff also cannot claim equity. The findings of the trial court for allowing the plaintiff’s application for temporary injunction and rejection of the defendants application for injunction against the plaintiff are erroneous and do not disclose application of mind in the facts and circumstances. Therefore, he argued for modification of the impugned order directing the parties to maintain status quo with regard to nature of the property. Sri Shararth Gowda appearing for respondents in MFA 3775/2019 and 3777/2019 has put forth the same points of arguments in respect of these appeals and argued for sustaining the order impugned in these two appeals.
11. Sri K.Sreedhar appearing for respondent No.1 in MFA 1788/2019 contended that once acquisition notification goes, all actions taken pursuant to acquisition notification do not get wiped out automatically. Possession was handed over to the society by drawing mahazar pursuant to final notification and disbursement of compensation to the landowners. After quashing of the notification, there must be a document to evidence that the possession of the lands was re-delivered to them. The landowners should return the compensation that they received. There is no material to show that there was re-delivery of possession to the landowners and that they returned the compensation amount. Therefore, the acquired land remained with the society only. If the society allotted sites thereafter the possession of the plaintiff who claims title through the original allottee cannot be disturbed by the earlier landowners and persons like defendants claiming to have purchased the property from the landowners. In these circumstances, the possession of the plaintiff must be protected. The plaintiff is also ready to file affidavit that she will handover the entire possession of the suit property including the building in the event she fails in the suit. He argued for sustaining the impugned order.
12. Sri P.M.Siddamallappa and Sri K.Sreedhar have relied upon the judgments of this court in the cases of Smt.
Shakunthalamma and Others vs Smt. Kantamma and Others [2015 (2) AKR 142] and M.Doddaiah and Others vs State of Karnataka and Others [(2012) 2 Kant.LJ 369]. Sri Sharath Gowda has referred to a judgment of the Supreme Court in the case of A.Venkatasubbaiah Naidu vs S.Chellappan and Others [(2000) 7 SCC 695].
13. I have considered the points of arguments. There is no dispute with regard to quashing of the preliminary notification dated 9.2.1988 and final notification dated 15.3.1989. Sri K.Sreedhar has placed reliance in the case of N.Doddaiah (supra) to gather support for his argument that the quashing of the notification does not apply to the acquisition of land in other survey numbers. He has referred to para 53 of the said judgment where it is observed that the land in respect of which notification had not been quashed, acquisition holds good and such lands are not affected by the order of quashing. But, the order in the review petition 1275/2014 in relation to order passed on I.A.No. 1/2014 filed in W.P.1845/1990 makes it clear that the order dated 18.1.2000 in the said writ petition would apply not only with respect to acquisition of land in Sy. No.119 of Nagadevanahalli of Kengeri Hobli but also the other lands in other survey numbers notified. It is submitted that writ appeal is pending. To appreciate the stand of the erstwhile landowners that they got back the possession of the acquired lands, as has been argued by Sri K.Sreedhar there must be evidence regarding re-delivery of possession to them and their returning of the compensation money to the Government. The defendants in these suits appear to have not placed any such material and for this reason, it is difficult to accept their contention that they took back possession. It appears even after quashing of the acquisition notification, the society went ahead with formation of layout and allotment of sites to its members. In O.S.No.5760/2018, the plaintiff produced some documents. The same documents are also produced here. In those documents, copy of the synopsis filed in W.A.2792/2018 shows that on 3.11.1999 the Bengaluru Development Authority approved the plan submitted by the society. The writ appeal against the order in W.P.1845/1990 is said to be still pending. If all these aspects are taken note of, it is possible to express an opinion that even if plaintiffs’ possession of their respective sites, can be accepted on the basis of the documents they have produced, but they cannot claim absolute right of possession. The decision of this court in the writ appeal will be the deciding factor. Therefore even if the plaintiffs are ready to give an undertaking that they will not claim equity and give up their possession in case they fail in their suits, the facts and circumstances are such that balance must be struck between the parties. The main purpose of granting temporary injunction is to preserve the status of the property as on the date of suit. If the plaintiffs construct houses, that will change the nature of the property. In this view the plaintiffs and the defendants can be directed to maintain status quo of the nature of the property as it existed on the date of the suit.
14. Since it is argued that the plaintiffs have availed loan for the purpose of construction and have collected building materials, to this extent their interest can be protected by imposing conditions on the defendants. It is to be noted here that normally conditions are imposed on that party in whose favour temporary injunction is granted, but here the status quo order benefits the defendants also. They too have sought counter injunction against the plaintiffs by filing applications under Order 39 Rule 1(a) of CPC. The maintainability of this application is questioned by the plaintiffs by placing reliance on a full bench decision of this court in the case of Shakuntalamma (supra). Be that as it may, the circumstance warrant subjecting the defendants to conditions.
15. In MFA 3767/2019, the main grievance of the appellants who are defendants in the suit O.S.No.2931/2019 is that the application for injunction was not disposed of within 30 days even after their appearance before the court on 24.4.2019, filing objections to I.A.1 filed by the plaintiffs and making an application as per I.A.2 for injunction against plaintiffs. In view of the judgment of the Supreme Court in the case of Venkata Subbaiah Naidu (supra), a right to appeal has accrued to defendants. Hence in this suit also, since the position is same as the position in other suits, the parties must maintain status quo of the nature of the property.
16. Therefore from the above discussion, I pass the following order:-
(i) All the appeals stand disposed of.
(ii) The impugned orders are modified.
(iii) The plaintiffs and the defendants are directed to maintain status quo with respect to nature of the suit properties till disposal of the suits.
(iv) The defendants are directed to file an affidavit within four weeks from today undertaking to compensate the plaintiffs for the loss that they may suffer on account of stoppage of construction. The affidavits shall be filed before the trial court.
(v) There is no order as to costs.
Sd/- JUDGE ckl