IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MFA No.5806 OF 2019(CPC) BETWEEN Sri. H.Ramesh, S/o. Late Hanumanthappa, Aged about 53 years, R/at No.261, 17th ‘C’ Cross, 3rd Block, 4th Stage, Basaveshwar Nagar, Bengaluru-560079.
(By Sri. C.Prakash, Advocate) AND 1. Smt. Muddamma, W/o. Gangadharaiah, Aged about 74 years, 2. Sri. Thimmaiah, S/o. Gangadharaiah, Aged about 54 years, 3. Sri. Nagaraju, S/o. Gangadharaiah, Aged about 49 years, 4. Sri. G Raja, S/o. Gangadharaiah, Aged about 45 years, …Appellant 5. Sri. Jayanna, S/o. Gangadharaiah, Aged about 38 years, All are residents of Peddanapalya Village, Tavarekere Hobli, Bengaluru South Taluk, Bengaluru-560038. …Respondents (By Sri. M.S.Varadarajan, Advocate, for R1 to R5) This MFA is filed under Order 43 Rule 1(r) of the CPC against the order dated 11.06.2019 passed on I.A.No.3 in O.S.No.133 on the file of the Senior Civil Judge & JMFC, Magadi, dismissing I.A.No. 4 filed under Order 39 Rules 1 & 2 of CPC.
This MFA coming on for admission, this day, the Court delivered the following :
JUDGMENT Heard the learned counsel for the appellant and the respondents at the time of admission.
2. This appeal is filed by the plaintiff in suit O.S.133/2017 on the file of Senior Civil Judge, Magadi. The suit is for specific performance in respect of 2 acres of land in Sy. No. 4 of Puradapalya Village, Tavarakere Hobli, Bengaluru South Taluk. The plaintiff has stated that the defendants executed an agreement of sale on 8.2.2016 in respect of this plaint schedule property and agreed to sell the same to him for a total consideration of Rs.80 Lakhs. The plaintiff claims to have paid Rs.40 Lakhs as advance, Rs.9 Lakhs by way of two cheques and in all Rs.31 Lakhs by way of cash. At the initial stage, the plaintiff filed an application for temporary injunction to restrain the defendants from alienating the plaint schedule property and it was allowed. The said order has not been challenged by the defendants. Later the plaintiff filed I.A.3 to restrain the defendants from changing the nature of the property as according to him fifth defendant undertook a construction. To this application, the defendants filed statement of objections contending that he was constructing only a temporary cattle shed. The construction had to be undertaken only in two guntas of land and that the plaintiff does not have a right to stop the construction.
3. Having heard the counsel for the plaintiff and the defendants on this application, the trial court has given a finding that admittedly the property belongs to the defendants. The plaintiff has to prove that the defendants executed the agreement of sale. They being the owners of the property have every right to improve the suit property. Any improvement made by the defendants does not disentitle the plaintiff to seek the relief of specific performance. Thus, the prima facie case is not made out for grant of temporary injunction as prayed for by the plaintiff in I.A.3.
4. Learned counsel for the appellant/plaintiff argues that in case construction is made in a part of the land, the nature of the property will change. The plaintiff will find it difficult to take possession of the suit property in case he succeeds in the suit. The defendants having received advance amount of Rs.40 Lakhs cannot make any construction and change the nature of the property. The findings given by the trial court are erroneous and have to be set aside and the application is to be granted.
5. Learned counsel for the respondents submits that it is made very clear in the statement of objections that defendant No.5 is constructing a cattle shed. In fact the defendants dispute to have executed an agreement of sale. In case the plaintiff proves the agreement and succeeds in the suit, any construction made by defendant No.5 will enure to his benefit. There is no perversity in the findings given by the trial court.
6. I have perused the impugned order. In a suit for specific performance, if the plaintiff makes an application to restrain the defendant from alienating the property, I find some meaning in it. Such a relief can be granted to avoid multiplicity of proceedings. Here in this case the defendants dispute the agreement of sale. If any construction is made in the suit property, it does not mean that the plaintiff loses his right to seek specific performance. If he succeeds he can take possession along with construction or he may get it demolished it if he does not want it. Defendant No.5 has made it very clear that it is only a temporary cattle shed. Therefore, this type of construction does not cause any obstruction to plaintiff. In this view of the matter, I do not find the interest of the plaintiff is affected in any way. The trial court has come to right conclusion. I do not find any infirmity in the findings. The appeal is dismissed.
Sd/- JUDGE Ckl