IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF JULY, 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA MISCELLANEOUS FIRST APPEAL NO.2309/2017 (CPC) c/w MISCELLANEOUS FIRST APPEAL NO.2310/2017 (CPC) BETWEEN:
SRI. M. CHANDREGOWDA, S/O. LATE S. G. MUNEGOWDA, AGED ABOUT 63 YEARS, R/AT POOJANAHALLI VILLAGE, KASABA HOBLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT, PIN-562 110.
... APPELLANT Common in both the appeals (BY SRI B.V. ACHARYA, SENIOR COUNSEL FOR SRI CHANDRAPPA V., ADVOCATE) AND:
1. SMT. DEVAMMA, D/O. LATE D. HANUMANTHEGOWDA, AGED ABOUT 69 YEARS, 2. SMT. GOWRAMMA, D/O. LATE D. HANUMANTHEGOWDA, AGED ABOUT 67 YEARS, 3. SMT. LAKSHMIDEVAMMA, D/O. LATE D. HANUMANTHEGOWDA, AGED ABOUT 64 YEARS, 4. SRI. B. H. VIJAYADEVEGOWDA, S/O. LATE D. HANUMANTHEGOWDA, AGED ABOUT 61 YEARS, 5. SRI. B. H. NARAYANASWAMY, S/O. LATE D. HANUMANTHEGOWDA, AGED ABOUT 59 YEARS, 6. SMT. JAYAMMA, D/O. LATE D. HANUMANTHEGOWDA, AGED ABOUT 56 YEARS, 7. SRI. B. H. NANJUNDEGOWDA S/O. LATE D. HANUMANTHEGOWDA, AGED ABOUT 55 YEARS, ALL ARE RESIDING AT BENDIGANAHALLI VILLAGE AND POST, SULIBELE HOBLI, HOSKOTE TALUK, BANGALORE RURAL DISTRICT-562 114.
8. T. G. RANGASHAMAIAH S/O. LATE GANGARANGAIAH, AGED ABOUT 79 YEARS, R/AT HOUSE NO. 716, 2ND "D" CROSS, 8TH MAIN ROAD, 3RD BLOCK, 3RD STAGE, BASAVESWARANAGAR, BANGALORE-560 079.
9. M/S. NAVAJYOTHI SHELTERS PVT. LTD., PAN NO. AAFCN1496D, A REGISTERED COMPANY HAVING ITS OFFICE AT NO.4/5, 10TH CROSS, 2ND MAIN, AKSHAYA NAGAR, T.C. PALYA MAIN ROAD, RAMAMURTHY NAGAR, BANGALORE-560 016, REPRESENTED BY ITS DIRECTORS.
10. J. ETHIRAJULU NAIDU S/O. K. UDDANADAMA NAIDU, AGED ABOUT 34 YEARS, R/AT NO.21, M.V. NAGAR, 20TH CROSS, RAMAMURTHY NAGAR, BANGALORE-560 037.
11. P. R. SHIVAKUMARA REDDY, S/O. G. RAMA REDDY, AGED ABOUT 47 YEARS, R/AT NO. 72, PANTHUR VILLAGE AND POST, BANGALORE EAST TALUK, BANGALORE-560 087.
12. S. P. HEMAN, S/O. LATE S. PARAMASHIVAM, AGED ABOUT 27 YEARS, R/AT NO.131/C, NEW BOREWELL ROAD, KONENA AGRAHARA, HAL POST, BANGALORE-560 017.
13. B. N. RAMESH, S/O. LATE NARASAIAH, AGED ABOUT 48 YEARS, R/AT NO. 114/A, SAPNA, 1ST MAIN, MES COLONY, KONENA AGRAHARA, HAL POST, BANGALORE-560 017.
... RESPONDENTS Common in both the appeals (BY SRI Y.R. SADASHIVAREDDY, SENIOR COUNSEL FOR SRI VINOD C. S., ADVOCATE FOR C/R9-R13;
V/O DATED 13.07.2017 NOTICE TO R1 TO R8 IS DISPENSED WITH) ***** THESE MFAs ARE FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED:06.03.2017 PASSED ON IA NOS.2 & 3 IN O.S.NO.8696/16 ON THE FILE OF THE XLIII ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BENGALURU, REJECTING IA NOS.2 & 3 FILED UNDER ORDER 39 RULES 1 & 2 OF CPC.
THESE MFAs. COMING UP FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING.
J U D G M E N T The plaintiff filed the present Miscellaneous First Appeals against the order dated 6.3.2017 in O.S. No.8696/2016 on the file of the 43rd Additional City Civil & Sessions Judge, Bengaluru only insofar as rejecting I.A. Nos.2 and 3 filed by the plaintiff under Order 39 Rules 1 and 2 of Code of Civil Procedure, 1908 for grant of Temporary Injunction restraining the defendant nos.9 to 13 from putting up construction in the suit schedule property and for alienating the suit schedule property in favour of third parties.
2. By an order dated 6.3.2017, the trial Court also allowed I.A. No.4 filed by defendant Nos.9 to 13 under Order 39 Rule 4 of Code of Civil Procedure, 1908 and vacated order of status quo dated 23.12.2016. Against the order passed on I.A. No.4, MFA No.2343/2017 is filed and the same is pending for consideration before this Court.
3. The present appellant – plaintiff filed O.S. No.8696/2016 for declaration of title and Permanent Injunction in respect of the plaint schedule property i.e., residential site nos.57, 58 and 59 (new nos.210, 211 and 212) carved out of Sy.No.80 measuring East to West on the northern side 73 feet and on southern side 90 feet and North to South 37 ½ feet situated at Banasawadi, Vijanapur, K.R. Pura Hobli, Bengaluru morefully described in the schedule contending that the plaintiff’s father viz., S.G. Munegowda, father of defendant Nos.1 to 7 viz., Hanumanthegowda and one Narayanagowda have jointly invested and purchased the land bearing Sy.No.80 measuring 2 acres through a registered sale deed dated 29.6.1964 in the name of Hanumanthegowda and subsequently the said land converted into residential purpose on 10.3.1965 and formed sites.
4. Thereafter under a partition deed dated 8.7.1965, the plaintiff’s father viz., S.G. Munegowda, father of defendant Nos.1 to 7 viz., Hanumanthegowda and one Narayanagowda have got partitioned the sites carved out of Sy.No.80 of Banaswadi village and in the said partition, ‘A’ schedule was allotted to the father of defendant nos.1 to 7, ‘B’ schedule was allotted to Narayanagowda and ‘C’ schedule was allotted to the plaintiff’s father viz., Munegowda { i.e., the site Nos.57, 58, 59 and other sites morefully described in the ‘C’ schedule were allotted to Munegowda}. The plaintiff’s father died on 6.3.2000. After his death, the plaintiff became the absolute owner in respect of Site Nos.57 to 59. It is further case of the plaintiff that there was a partition between Hanumanthegowda and his sons on 25.1.1983 and in the said partition deed, there is a reference to the partition deed dated 8.7.1965 among Hanumanthegowda, Narayanagowda and Munegowda.
5. It is further case of the plaintiff that Bangalore Development Authority (‘BDA’ for short) acquired land bearing Sy.No.80 measuring 2 acres of Banaswadi village by issuing preliminary notification dated 28.5.1984 and final notification dated 23.10.1986 and subsequently, award also came to be passed. Thereafter one of the sons of Hanumanthegowda i.e, 7th defendant filed Writ Petition No.43618/2012 before this Court challenging the notifications issued by the BDA dated 28.5.1984 and 23.10.1986 in respect of 2 acres out of Sy.No.80 of Banaswadi village. During the pendency of the said writ petition, the joint memo came to be filed by the 7th defendant and the BDA in the said writ petition. In terms of the joint memo, 24 ½ guntas in Sy.No.80 was permitted to be retained by the 7th defendant and the BDA has stated that it will not make any claim in respect of said 24 ½ guntas and in respect of remaining 1 acre 15 ½ guntas after deducting 24 ½ guntas from 2 acres, 7th defendant is entitled for compensation after production of the original documents. Accordingly, Writ Petition No.43618/2012 was disposed of in terms of the joint memo.
6. Subsequently, the present appellant – plaintiff filed an application before this Court to recall the order dated 24.2.2014 passed in W.P. No.43618/2012. This Court by an order dated 11.8.2014 in W.P. No.43618/2012 rejected the application observing that if the applicant had any grievance, he may take recourse to the procedure provided under law and there is no warrant to recall the order dated 24.2.2014. Accordingly, the present suit filed for declaration and Permanent Injunction. During the pendency of the suit, the plaintiff filed I.A. No.2 for Temporary Injunction restraining the defendant nos.9 to 13 from putting up construction in the suit schedule property and I.A. No.3 for restraining the defendant nos.9 to13 from alienating the suit schedule property till disposal of the suit, reiterating the plaint averments.
7. The said applications were opposed by the defendants by filing objections and contended that the suit filed by the plaintiff itself is not maintainable and hence question of granting Temporary Injunction does not arise and therefore sought for dismissal of the applications as well as the suit.
8. The trial Court considering the entire material on record by the impugned order dated 6.3.2017 rejected I.A. Nos.2 and 3. Hence, the present MFAs are filed against the rejection of I.A. No.2 and 3. The trial Court by an order dated 6.3.2017 also allowed I.A. No.4 filed by defendant Nos.9 to 13 and vacated the order of status quo dated 23.12.2016. Against order passed on I.A. No.4, MFA No.2343/2017 is filed and same is pending for consideration before this Court as stated supra.
9. I have heard the learned senior counsel for the parties to the lis.
10. Sri B.V. Acharya, learned senior counsel for the plaintiff vehemently contended that the impugned order passed by the trial court rejecting I.A. Nos.2 and 3 filed by the plaintiff is contrary to the material on record and is erroneous. He further contended that the trial Court recorded a finding that the plaintiff has not made out any primafacie case to establish that the plaintiff is in possession of Site Nos.57 to 59. The same is erroneous. The learned Judge has not taken into consideration the registered partition deeds dated 8.7.1965 and 25.1.1983 under which plaintiff’s father got rights in respect of Site Nos.57 to 59. The trial Court considering the entire materials on record ought to have granted an equitable order of Temporary Injunction to protect the rights of both the parties and ultimately if alienation is made and construction is made in Sy.Nos.57 to 59, it amounts to multiplicity of proceedings and the plaintiff will be put to irreparable loss and damage. The learned senior counsel further contended that while deciding I.As., the trial Court has no right to decide the rights of the parties on the merits of the suit. Therefore he sought to set aside the impugned order passed by the trial court by allowing the present appeals.
11. Per contra, Sri Y.R. Sadashiva Reddy, learned senior counsel for the respondents sought to justify the impugned order and strenuously contended that even assuming that the plaintiff has rights in respect of the suit schedule property in terms of the alleged registered partition deeds dated 8.7.1965 and 25.1.1983, after issuance of the preliminary and final notifications by the BDA, the plaintiff has lost his rights in respect of the suit schedule property. He further contended that the plaintiff has not challenged the notifications issued by the BDA acquiring Sy.No.80 measuring 2 acres and ultimately the application filed by the present plaintiff in Writ Petition No.43618/2012 to recall the order dated 24.2.2014 came to be rejected and against the said order, an appeal filed by the plaintiff came to be dismissed for default. Therefore he contended that the plaintiff has not made out any primafacie case for grant of Temporary Injunction. He further contended that the boundaries mentioned in the plaint schedule, sketch schedule and the alleged partition deeds schedule are entirely different. When there is dispute with regard to the identity of the property in question, the equitable order of injunction cannot be granted and sought for dismissal of Miscellaneous First Appeals.
12. Having heard the learned senior counsel for the parties, it is an admitted fact that the present plaintiff filed the suit for declaration and Permanent Injunction on the basis of partition deeds dated 8.7.1965 and 25.1.1983, contending that he is the owner in possession of the suit schedule property i.e., residential site Nos.57, 58 and 59 carved out of Sy.No.80 and he is entitled for the relief sought for. The same is disputed by the defendants by filing the written statement and denied the identity of the property in question and contended that as soon as the preliminary and final notifications were issued by the BDA in the years 1984 and 1986 and after passing the award, the plaintiff has lost his rights in respect of the suit schedule property and the acquisition made by the BDA reached finality. Only defendant no.7 filed the writ petition No.43618/2012 before this Court and at his instance, 24 ½ guntas out of 2 acres in Sy.No.80 was permitted to be retained by him and others are not entitled for the said benefit. The trial Court considering the entire material on record, has recorded a finding that it is an admitted fact that BDA has acquired the land bearing Sy.No.80 measuring 2 acres by issuing the preliminary notification in the year 1984 and the final notification in the year 1986 for formation of new layout to the east of NGEF and thereafter possession was taken under the provisions of the Land Acquisition Act and award also came to be passed.
13. Admittedly, the 7th defendant filed writ petition and ultimately writ petition came to be ended in compromise and joint memo came to be filed by the BDA and the 7th defendant in the said writ petition. In terms of the joint memo, 24 ½ guntas in Sy.No.80 was permitted to be retained by the 7th defendant and the BDA has stated that it will not make any claim in respect of said 24 ½ guntas and in respect of remaining 1 acre 15 ½ guntas after deducting 24 ½ guntas from 2 acres, 7th defendant is entitled for compensation after production of the original documents. Accordingly, writ petition came to be disposed of in terms of the compromise petition on 24.2.2014. The plaintiff has filed an application before this Court to recall the order dated 24.2.2014. The said application came to be rejected on the ground that the plaintiff was a third party. Writ Appeal filed by the plaintiff against the order on I.A. came to be rejected. These are admitted facts. The trial Court recorded a finding that the plaintiff has not made out primafacie case for grant of Temporary Injunction sought for. Accordingly, rejected I.A. Nos.2 and 3.
14. The material on record clearly indicates that it is an undisputed fact that there was registered partition deed among Hanumanthegowda, Narayana Gowda and Munegowda on 8.7.1965 and there is no dispute with regard to partition between Hanumanthegowda and his sons on 25.1.1983. There is a reference to partition among three persons stated supra and the allotment made in favour of the plaintiff’s father in respect of Site Nos.57, 58 and 59 in the partition deed dated 25.1.1983.
Subsequent to the said partition deed, the BDA issued preliminary and final notifications in the years 1984 and 1986 and award came to be passed in the year 1988. Admittedly, the said acquisition is not challenged either by the plaintiff or by the father of the plaintiff before this Court. It is also not in dispute that the 7th defendant filed Writ Petition and it was ended in compromise between the BDA and the 7th defendant as stated supra.
15. The fact remains whether the plaintiff is entitled for declaration and injunction in respect of site Nos.57, 58 and 59 on the basis of the registered partition deeds stated supra, has to be decided after detailed adjudication of the matter on the basis of the oral and documentary evidence to be adduced and produced by both the parties. When all the materials and the pleadings are disputed by the defendant on the basis of the acquisition notifications issued by the BDA and on the basis of the order passed by this Court in Writ Petition No.43618/2012, the matter has to be adjudicated before the trial Court and at the same time, if ultimately the plaintiff succeeds in the suit, his rights should be protected. The trial Court while considering the interim applications, has gone to the extent to decide the rights of the parties on merits of the suit, which is impermissible.
16. In view of the above, the plaintiff has not made out any primafacie case to interfere with the impugned order, accordingly the Miscellaneous First Appeals are disposed of holding that any alienation made by the defendants during the pendency of the suit will always hit by the provisions of Section 52 of the Transfer of Property Act and if any construction is made by the defendants in the suit schedule property and if ultimately the plaintiff succeeds in the suit, the defendants cannot claim any equity in respect of construction made in the suit schedule property i.e., Site Nos.57 to 59 of Sy.No.80 of Banaswadi, Vijinapura, K.R. Pura Hobli, Bengaluru. However, it is made clear that any observations made by the trial Court and this court while deciding I.A. Nos.2 and 3 shall not come in the way of the parties to establish their rights in the suit schedule property independently in accordance with law.
Sd/- JUDGE Gss/-