IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR M.F.A. NO. 5064 OF 2018 (CPC) BETWEEN 1. Sri. Mahadeva @ K.C. Mahadevappa, S/o Channegowda, Aged 55 years, Presently R/at No.6/A, Kananayakana Halli Village, Bantenahalli Post, Kasaba Hobli, Beluru Taluk, Hassan District – 573 115.
2. Sri. D. Harsha, S/o Dasegowda, Aged about 23 years, Presently R/at No.9, Yadugiri Nilaya, Haniyambadi, Opp. Kalikamba Ceramics, Kaveri Nagara, Mandya – 571 401.
(By Sri. Sadashivaiah K.G., Advocate.) AND 1. Smt. Muthubai, W/o Late Sathyanarayana Rao, Aged 63 years, No.85, 9th Cross, Pipeline Road, Dattatreya Temple Street, ... Appellants Malleshwaram, Bengaluru – 560 003.
2. Sri. Manjunatha, S/o Ramakrishnappa, Aged 41 years, R/at Gidadakonehalli Village, Yashwanthapura Hobli, Bengaluru North Taluk, Bengaluru District – 560 022.
3. Sri. Anil, S/o Not known, Aged about 43 years, Royal Borewell and Properties, No.2323 A, “D” Group Layout, Gidadakonehalli, Yeshwanthapura Hobli, Bengaluru North Taluk, Bengaluru District – 560 022.
(By Sri. M. Prakash, Advocate for ... Respondents Sri. Manivannan G., Advocate for C/R1.) This MFA is filed under Order 43 Rule 1(r) of CPC, against the order dated 17.03.2018, passed on IA.2 in O.S.N. 8841/2017, on the file of the XXXV Additional City Civil & Sessions Judge, Bengaluru (CCH-36), allowing the I.A.2 filed under Order 39 Rules 1 and 2 of CPC.
This MFA coming on for admission, this day, the Court delivered the following:
JUDGMENT This matter though listed for admission, at the consent of the learned counsel for both the parties, is taken up for final disposal.
2. Heard the learned counsel for the appellants and the learned counsel for the respondents.
This appeal is preferred by the appellants / first and third defendants against the order by the XXXV Addl. City Civil & Sessions Judge, Bengaluru (CCH-36) dated 17.03.2018 passed in O.S.No.8841/2017 on I.A.No.2.
3. The factual matrix of the appeal is as under:
The first respondent herein being the plaintiff filed a suit against the defendants for the relief of injunction in respect of the suit schedule properties depicted therein. The plaintiff claims to be the owner of the Site No.2361 measuring 30’ x 40’ of Sy.No.8/16 of Gidadakonenahalli village, Yeshwanthapura, Bangalore North Taluk. The plaintiff’s husband being a member of the Karnataka ‘D’ Group Employees’ Central Association, Bangalore, had applied for a site. On 29.01.2004, the aforesaid site property depicted in the suit schedule property was given in possession to the husband of the plaintiff by the said Karnataka ‘D’ Group Employees Association, Bangalore and after the death of her husband, the plaintiff had been in continuous possession of the site, from that date. But in the year 2017, Defendants 1 to 4 started interfering with the plaintiff’s peaceful possession. Hence, the plaintiff / Respondent No.1 filed a suit against the defendants in O.S.No.8841/2017. The Trial Court granted an order of status quo and issued notice to the defendants. After receipt of suit summons, the appellants and Respondents 2 and 3 appeared before court and filed detailed written statement independently and brought to the notice of the court that the property claimed by the plaintiff / first respondent was altogether different from the property purchased by the appellants. Further it was contended that the property purchased by the plaintiff was part and parcel of Sy.No.8/16 of Gidadakonenahalli Village, which site was formed by the Karnataka ‘D’ Group Employees Central Association. Whereas, the appellants /Defendants 1 and 3 had purchased Site Nos.7 and 8 from their respective owners, which was formed out of Sy.No.8/14 measuring to an extent of 1.01 acres. Ever since the purchase, the appellants are in continuous possession and enjoyment and they have clearly and categorically contended that the property claimed by the appellants are totally different from the property claimed by the plaintiff / first respondent. As such, the sites purchased by the appellants are formed out of Sy.No.8/14 whereas the site claimed by the first respondent is formed out of Sy.No.8/16 of Gidadakonenahalli, Yeshwanthapura Hobli, Bangalore North Taluk. It is further stated that when the appellants commenced construction, the plaintiff herself came and obstructed their constructions and at that point of time a complaint was given by the appellants as well as the first respondent and after receipt of the complaint, with the consent of the parties a joint survey was conducted and at that point of time, the first respondent deliberately did not appear. However, it was found that the property claimed by the first respondent was totally different from the property claimed by the appellants. In that suit, the plaintiff filed I.A.No.2 under Order 39 Rules 1 and 2 CPC seeking an order of temporary injunction against the defendants restraining them and their agents from interfering with the peaceful possession and enjoyment of the suit schedule property. The defendants filed I.A.No.4 under Order 39 Rule 4 CPC to dissolve the interim order granted by the court below. However, the court below, without appreciating the fact situation and without verifying the documents in a proper and perspective manner has deliberately allowed the application I.A.No.2 filed under Order 39 Rules 1 and 2 by the plaintiff and dismissed I.A.No.4 filed by the defendants. Hence, this appeal has been filed by the appellants praying to set aside the order on I.A.No.2 dated 17.03.2018 passed by the court below in O.S.No.8841/2017.
4. The learned counsel for the appellants has taken me through the reasons assigned in the aforesaid order passed by the court below in O.S.No.8841/2017 wherein injunction has been granted in respect of the site bearing No.2361 measuring 30’ x 40’ carved out of residentially converted land in Sy.No.8/16 situated in Gidadakonenahalli in Bangalore North Taluk. The learned counsel contends that the suit schedule property claimed by the first respondent / plaintiff is carved out of Sy.No.8/16 of Gidadakonenahalli village and formed by the Karnataka ‘D’ Group Employees Central Association. Whereas the sites purchased by the appellants has been carved out of Sy.No.8/14 and sale deed executed by one Ramakrishnappa of Gidadakonenahalli. On noticing that the properties are different from each other, the Trial Court having come to the conclusion that the property claimed by the plaintiff was different from that claimed by the appellants, ought not to have granted injunction order in the absence of cause of action.
It is further contended that the first respondent has not impleaded the Housing Society which granted site in favour of the plaintiff’s husband. Hence, the identity of the property not being available, the court below has granted injunction order in respect of non- existing property.
Further, the said Society had not got converted the property bearing Sy.No.8/14 nor formed a layout in the said survey number. Hence, the plaintiff /first respondent who is not at all in any way connected with the property of the appellants could not have filed the suit claiming relief against the appellants. Any such claim of the first respondent should have been made against the Society only. Hence, he contends that the impugned order passed by the Trial Court ought to be set aside.
Further it is contended that when the court below observed that in spite of the police issuing notice to the plaintiff to be present on 10.01.2018 before the surveyor for conducting survey, the plaintiff without attending before the surveyor had approached the court below seeking injunction, has proceeded to hold that the balance of convenience lies in favour of the plaintiff, which is a patent error committed by the court below. Hence, on all these grounds, the learned counsel for the appellants contends that the order passed by the court below be set aside and consequently I.A.No.2 be dismissed.
5. Per contra, learned counsel for the respondent No.1 / plaintiff contends that though the appellants had filed their written statements, they had not filed any counter claim or sought for any interim order of injunction with respect to their alleged property against Respondent No.1 before the court below. Further, he contends that the appellants have not produced any documents to establish that they had borrowed loan for construction of their sites. Ramakrishnappa from whom the appellants claimed to have purchased their properties, had instituted O.S.No.8317/2007 as against the Karnataka ‘D’ Group Employees Central Society seeking the relief of declaration to declare the sale deed dated 20.09.2003 executed by him in favour of the said Society with respect to the property bearing Sy.No.8/14 measuring 1 acre 1 gunta as null and void and the said suit after serious contest, was dismissed vide judgment dated 13.11.2012. After two years of the said judgment, the said sale deed was alleged to have been cancelled and thereby Ramakrishnappa is alleged to have become the owner in possession of Sy.No.8/14. But however, it is relevant to point out that pursuant to the sale deed executed in favour of the Society, all the revenue records were mutated in favour of the Society, conversion order was obtained and layout was formed and the members of the Society were allotted sites. He contends that the alleged cancellation of the sale deed dated 20.09.2003 between Ramakrishnappa and the alleged President of the Sangha is illegal, invalid and void, as the Society had in fact become the owner in possession who had form the layout and allotted sites in favour of its members. That nothing remained in the hands of the President of the Society to enter into the alleged Cancellation Deed after a lapse of 11 years from the date of the sale deed, that too without there being a unanimous decision of its members, more particularly the members who were allotted sites, Directors and President by passing a resolution. Hence, he contends that the mere alleged cancellation of the sale deed does not take away the right of the Society or its Members or accrued right to Ramakrishnappa and consequently to the appellants. Hence, the learned counsel for the respondent contends that the court below, taking into consideration all these facts, has rightly granted an order of injunction by its order dated 17.03.2018, which does not call for interference by this court in this appeal.
6. On hearing the learned counsel for both the parties, I find that there is serious dispute regarding the identity of the suit schedule property. Though it is contended by the appellants that the suit schedule property claimed by the plaintiff / first respondent is different from that claimed by the appellants, there is ambiguity relating to the Cancellation Deed which is said to have been obtained by Ramakrishnappa from the President of the Karnataka ‘D’ Group Employees’ Central Association, Bangalore. The title of the appellants to the alleged properties claimed by them revolves around the said cancellation deed between Ramakrishnappa and the said Employees’ Association.
The court below, considering the material placed by the plaintiff, has come to the conclusion that the balance of convenience lies in favour of the plaintiff and has hence proceeded to grant injunctive relief in her favour by allowing I.A.No.2. Since there is serious dispute regarding the claim of the respective parties with regard to the suit schedule properties, I find that the plaintiff as well as the defendants are required to establish their respective claims before the Trial Court by adducing oral as well as documentary evidence relating to their claim over the suit schedule properties. Hence, I find that at this stage, it is not necessary for this court to go into the merits of the matter.
7. Keeping in view the submission of the learned counsel for the appellants and the respondents, the matter is remitted to the court below with a direction to the court below to give an opportunity to both the plaintiff and the defendants to produce oral as well as documentary evidence relating to their claim over the suit schedule properties to establish their case. Hence, it is directed that the court below shall dispose of the suit as expeditiously as possible, in accordance with law, however not being influenced by any of the observations made by this court. The appeal is disposed of.
The injunction order passed by the court below on I.A.No.2 shall continue to operate till the disposal of the suit in O.S.No.8841/2017.
I.A.No.1/2018 is dismissed as it does not survive for consideration.
SD/- JUDGE KS