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 M.F.A. No.6000 OF 2016 (CPC) BETWEEN:
Sri. B.M. Srinivasa S/o late Mulbagalaiah, Aged about 52 years, R/at No.116, 5th Main (West), ITI Layout, BSK 3rd Stage, Bengaluru – 560 085. …Appellant (By Sri. Ganapathi Bhat, Advocate) AND:
1. Sri. B.S. Rajan Age: Major, R/at No.2786, 16th Cross, 6th Main, BSK 2nd Stage, Bengaluru – 560 070.
2. M/s. Shree Construction Office at No.2786, 16th Cross, 6th Main, BSK 2nd Stage, Bengaluru – 560 070.
Represented by its Partners and Managing Partner Sri B.S. Rajan.
3. Smt. Kamalamma W/o Sri. N. Subramani, Aged about 60 years, R/at No.1485, 27th Cross, 24th Main Road, BSK 2nd Stage, Bengaluru – 560 070.
4. Sri. N. Subramani S/o Sri. Changaiah, Aged about 60 years, R/at No.1485, 27th Cross, 24th Main Road, BSK 2nd Stage, Bengaluru – 560 070.
5. The Commissioner Bangalore Development Authority, Bengaluru – 560 003. … Respondents (By Sri. B.V. Shankara Narayana Rao, Sr. Advocate for Sri. Gautham Chand, Advocate for C/R1 & R2) *** This Miscellaneous First Appeal is filed under Order 43 Rule 1 (R) of Code of Civil Procedure, 1908 against the order dated 27.07.2016 passed on I.A. No.2 in O.S. No.3845/2016 on the file of LIX Additional City Civil and Sessions Judge, Bengaluru City, rejecting I.A. No.2 filed under Order 39 Rules 1 and 2 of CPC.
This appeal coming on for Admission this day, the Court, delivered the following:
JUDGMENT Heard the learned counsel for the appellant and learned counsel for the respondents.
2. For the sake of convenience, the parties will be described as per their status before the trial Court.
3. The appeal is filed by the plaintiff aggrieved by the order passed by LIX Additional City Civil Judge (CCH-60), Bengaluru on I.A. No.II filed under Order 39 Rules 1 and 2 of CPC, wherein, the trial Court rejected the application of the appellant.
4. Plaintiff had filed a suit for relief of permanent injunction, to declare the deed of Re-Convey dated 23.01.2015 executed by Bangalore Development Authority in favour of defendant Nos.3 and 4 as null and void, for declaration that the Gift Deed dated 05.03.2016 allegedly executed by defendant No.3 in favour of defendant No.4 is not binding on the plaintiff and for possession of the suit schedule property from defendant Nos.1 and 2 and directions to defendant Nos.1 and 2 to remove the illegal construction made in the suit schedule property. Along with the said suit, plaintiff had filed an application under Order 39 Rules 1 and 2 of CPC, wherein he sought temporary injunction restraining the defendants and their agents by putting up illegal construction on the plaint schedule property. In the said application filed by the plaintiff, there are two schedules, namely, first schedule being Site No.18/2 Old property No. 43 situated at 4th Main, 17th Cross, Banashankari 2nd Stage, BBMP Ward No.165, Bangalore South Taluk measuring East to West 80 feet and North to South 50 Feet. The plaintiff describes the other schedule as ‘the defendants illegally claimed schedule property’ under which it is the residential property bearing Municipal No.3944-H/3944-I, PID No.56-125-3944-h/3944-I measuring East to West on the Northern Side 90 Feet and on the Southern side 96 Feet and North to South on Eastern Side 54 Feet and on the Western Side 49.5 Feet totally measuring 4812.75 Square Feet.
4. The said application was vehemently opposed by the defendants and the learned trial Judge rejected the application for injunction by its order dated 27.07.2016.
5. Aggrieved by the same, the plaintiff is before this Court challenging the correctness of the said order.
6. Learned counsel for the appellant/plaintiff submits that he is the absolute owner of the suit schedule property having purchased the same from one Mr. Madhusudhan R., and three sisters namely, B.R. Anuradha, Asha Kiran R. and Veena B.R., who are children of one Rangappa and B.N. Lakshmi. Thereafter, the appellant has got his name changed in katha and other records in BBMP and he is in peaceful possession and enjoyment of the same by virtue of the Sale Deed dated 09.11.2012. The plaintiff submits that on 07.04.2016 at 4.30 p.m., defendant Nos.1 and 2 have unlawfully tried to evict the plaintiff and demolish the structure of the suit schedule property. The plaintiff has lodged a complaint on 07.04.2016 and thereafter, he has filed original suit in O.S. No.2954/2016 and pursuant to the filing of the suit, the present suit in O.S. No.3845/2016 has been filed by the plaintiff against the defendants.
7. It is seen from the records and the averments made in the plaint itself that defendant Nos.1 and 2 are claiming that they are owners of the suit schedule property and they have purchased the same from defendant No.3, by Deed of Re-Convey executed by Bangalore Development Authority on 23.01.2015 in favour of defendant No.3, wherein possession certificate was issued by the Bangalore Development Authority. It is also the case of the defendants that defendant No.4 also executed deed in favour of defendant Nos.1 and 2 in respect of another site vide Sale Deed dated 11.03.2016. By virtue of the same, defendant Nos.1 and 2 are in peaceful possession and enjoyment of the said property. It is the submission of the learned counsel for defendant Nos.1 and 2 that they have put up construction over the said property and if they are curtailed by an order of injunction, they will be put to irreparable injury and hardship. It is also the case of the defendants that they have secured necessary permission and licence from the BBMP for putting up construction by investing huge amount. Therefore comparative hardship and inconvenience will be more on them if an order of injunction is granted in favour of the plaintiff.
8. Per contra, learned counsel for the plaintiff submits that though he admits that the defendants are in peaceful possession of the property described by him in his application, defendants have illegally claimed the schedule property. He has nevertheless sought for possession of the suit schedule property from defendant Nos.1 and 2.
9. Be that as it may, it appears that there is some serious dispute with regard to the identity of the property, which parties will have to agitate and resolve before the trial Court by leading evidence and producing appropriate necessary documents. This Court is not inclined to venture into the aspect of which property the plaintiff is in possession and as to which property the defendants are in possession.
10. It is necessary to note here that on 07.10.2016, after arguing the matter for sometime, learned counsel for the respondents Sri. Shankar Narayana Rao, had fairly submitted that the defendants would take the risk of the proceedings with the construction and that they will not claim any equity ultimately, if the plaintiff succeeds in the proceedings. Noting the same, this Court had directed defendant Nos.1 and 2 to file an affidavit to that effect before this Court. Accordingly, in compliance of the same, defendant No.1 filed an affidavit on his behalf and also on behalf of defendant No.2 by giving an undertaking, wherein in paragraph Nos. 5 and 6, he states as under:-
“5. I state that when the above matter last came up for admission before the Hon’ble Court on 07.10.2016 our counsel made a submission to the effect that we shall not be claiming equities if the appellant/plaintiff were to succeed ultimately, in the matter. Recording the above submission of our counsel, the Hon’ble Court adjourned the matter to 21.10.2016, directing to file an affidavit to that effect by the Respondent/Defendant Nos.1 & 2.
6. I state that in compliance with the order dated 07.10.2016 passed by this Hon’ble Court, I am filing this affidavit by way of undertaking that we will not claim equities if the appellant/plaintiff were to succeed ultimately in the matter.”
11. Therefore, without going into the merits of the matter, learned counsel for the respondent has once again fairly submitted before this Court that he shall not claim any equity in case plaintiff succeeds in the Court below. Such a submission of the learned counsel for the respondents is appreciated and taken on record.
12. Learned counsel for the appellant/plaintiff is also satisfied and convinced with such an undertaking, by way of affidavit, produced before this Court.
13. By placing such an undertaking affidavit, nothing survives for consideration in this appeal. Accordingly, the appeal is disposed of with the observations made above.
It is needless to mention that the learned counsel for the parties before the Court below shall co-operate with the trial and expedite the disposal of the proceedings.
MBM VK Sd/- JUDGE