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.8660 OF 2018 (CPC) BETWEEN:
SRI PRASANNA KUMAR S/O. LATE B.R.GOPALACHAR AGED ABOUT 52 YEARS R/AT NO.2, GANAKALLU VILLAGE SRINIVASAPURA DR.VISHNUVARDHAN ROAD KENGERI HOBLI BANGALORE SOUTH TALUK BENGALURU – 560 069 ALSO AT:
NO.L-6, COTTONPET MILL ROAD BENGALURU – 560 053 ... APPELLANT AND:
(BY SRI V.B. SHIVA KUMAR, ADVOCATE) SRI Y.H. ANAND AGED ABOUT 49 YEARS S/O. LATE P. HANUMAPPA REDDY RESIDING AT NO.1/1, III CROSS ANJANEYA TEMPLE ROAD YEDIYUR, VI BLOCK, JAYANAGAR BENGALURU – 560 082 ... RESPONDENT (BY SRI VIJAYA KUMAR.K, ADVOCATE) *** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1 (R) OF CODE OF CIVIL PROCEDURE PRAYING TO SET ASIDE THE ORDER DATED 19.09.2018 PASSED BY THE 19TH ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU (COURT HALL NO.18) IN O.S.NO.7013/2017, CALL FOR RECORDS OF THE COURT BELOW, DISMISS THE APPLICATION FOR INJUNCTION AND ALLOW THIS APPEAL IN FAVOUR OF THE APPLICANT ON I.A.NO.1.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel for appellant and respondent.
2. Though the matter is listed for Admission with the consent of both the parties the matter is taken up for final disposal.
3. The parties are referred to as per their status before the trial Court for the sake of convenience.
4. This is defendant’s appeal. The plaintiff filed the suit against the defendant for the following reliefs:
(a) For the relief of declaration, to declare that the Plaintiff is the absolute owner in respect of schedule property;
(b) For the relief of possession directing the Defendant to quit, vacate and deliver the vacant possession of the schedule property to the plaintiff and if the defendant fail to deliver the possession this Hon’ble Court may be pleased to hand over the vacant possession of the schedule property through court media;
(c) Permanent injunction, restraining the Defendant his men, agents, servants, GPA Holders or anybody acting on his behalf from in any way challenging the nature of the schedule property;
(d) For the relief of damages directing the defendant to pay a sum of Rs.15,000/- per month from the date of filing of this suit to till handing over the possession of the schedule property.
Along with the suit an application for temporary injunction also came to be filed by the plaintiff, for a direction restraining the defendant, his agents, GPA holders, or servants or anybody acting on his behalf from in any way of changing the nature of the schedule property pending disposal of the suit.
5. The defendant, who is appellant herein, had filed his detailed written statement denying the claim made by the plaintiff and has taken a plea that the suit is barred by limitation and the suit schedule property is unidentifiable and that the defendant has invested huge sums of money by paying taxes and equity, that the plaintiff’s suit is hit by principles of res-judicata, the plaintiff’s right to claim is hit by Section 52 of the Transfer of Property Act. Similar, contentions are taken by the defendant to the application filed by the plaintiff under Order 39 Rules 1 and 2 of CPC and sought for dismissal of the suit as well as for dismissal of the application.
6. After hearing both the parties the trial Court partly allowed the application and passed the following order:
Status-quo order is granted and defendant is hereby directed to maintain Status-quo with regard to structure raised on schedule property bearing Site No.2 carved out of Sy.No.16/1, measuring East to West 36 ft and North to South 55 ft situated at Ganakallu Village, Kengeri Hobli, Bangalore South Taluk, till disposal of the suit or modification of the order if sought by defendant in case of exigency arises for habitation or utilization of the building.
Aggrieved by the said order, the defendant has filed the present appeal.
7. It is the case of the plaintiff that he is the absolute owner in possession and enjoyment of the suit schedule property and his name has been effected in the revenue records and other public records. It is the case of the plaintiff that Sy. No.16/1 of Ganakallu Village, Kengeri Hobli, Bangalore South Taluk was originally measuring 5 ½ Acres belonging to one Beeramma, who sold it to Rangappa under the sale deed dated 08.03.1931. Thereafter, Rangappa sold the said property to one Madaiah on 22.09.1942. The said Madaiah along with his son Mahadevaiah, sold the entire Sy. No. 16/1 to one Ramakrishna on 18.06.1962. Thereafter, it is stated that Mahadevaiah Son of Madaiah re-purchased 4 Acres 13 guntas of land in Sy. No. 16/1 of Ganakallu Village under registered sale deed dated 27.12.1971. Thereafter, it is stated that Mahadevaiah sold the property on the very same day to one Rangaiah and once again Mahadevaiah re- purchased the property under the registered sale deed dated 01.08.1977 and further the plaintiff has purchased the suit schedule property from Mahadevaiah by virtue of registered sale deed dated 10.02.2011. Thereafter, all the revenue records including BDA are in the name of the plaintiff. The plaintiff submits that he has put up compound wall and has been in possession of the suit schedule property. It is noted that during the month of January 2017, the plaintiff realized that defendant has illegally tress passed into the suit schedule property and has constructed house and shops over it and has also let it out to some of the tenants. Accordingly, the plaintiff has filed a suit for the reliefs stated above.
8. The defendant has contended that the suit filed by the plaint is barred by law of limitation and the father of the defendant B.R.Gopalachar had purchased the suit schedule property by registered sale deed dated 16.06.1967. It is also stated by the defendant that originally the suit schedule property belonged to one C.M.Krishna Shetty, who had acquired the property by way of sale deed dated 04.01.1965. Thereafter, it is stated that the father of the defendant has purchased the said property from C.M.Krishna Shetty and he is in absolute possession and enjoyment of the same. The defendant further states that he is under uninterrupted possession and enjoyment of the suit schedule property. He has denied the title of the plaintiff and also stated that the plaintiff has purchased a fictitious property, which is unidentifiable and that the plaintiff has concocted, fabricated and created the documents from 10.02.2011. It is also stated by the defendant that he has filed OS No.5723/2010 against the present plaintiff’s Vendor. Accordingly, based on these documents and statement, he prays for dismissal of the suit.
9. The learned counsel for appellant further submitted that the impugned order is not sustainable in law, in view of the fact that the learned trial Judge has not brought out the facts and contentions of the defendant and has solely relied on the contentions made by the plaintiff, more so, what is stated in Paragraph No.12 of the impugned order and in other paragraphs thereunder. Hence, the learned trial Judge has failed in appreciating the evidence and contentions of the defendant. It is also the case of the learned counsel for defendant that the trial Court has not considered the important aspect of prima facie case, balance of convenience, hardship and injury.
Under these circumstances, he sought for setting aside the order passed by the learned trial Judge.
10. Per contra, the learned counsel for respondent has narrated the facts with regard to the purchase of the property right from the stage of agricultural status to the present site measuring 1980 sq. ft. The learned counsel for respondent submits that there is no dispute with regard to the fact that the defendant is presently residing in the suit schedule property and that is precisely the reason why he sought for delivery of the possession from the defendant. The learned counsel for respondent vehemently argues for sustaining the order of the trial Court.
11. After giving my anxious consideration to the facts and circumstances of the case, and the arguments addressed by the learned counsel for appellant and the respondent, I am of the opinion that the plaintiff as well as the defendant are relying upon the registered sale deed to claim ownership over the suit schedule property. The defendant has let out the residential house and shops to the tenants. The relief sought for by the plaintiff is for declaration of his ownership and for possession from the defendant and also for damage for use and occupation of the suit schedule property. Admittedly, all these aspects will have to be decided by the parties going into the trial by adducing the evidence and by production of documents, which cannot be decided at this state in the appeal. Rightly what has been decided by the trial Court is with regard to the prima facie case, balance of convenience, irreparable injury and hardship. The trial Court in its order has come to the conclusion that the prima facie case is made out and balance of convenience and loss would be caused to the plaintiff and therefore, the same titled towards the plaintiff. The trial Court has also noted the fact that the defendant has already put up construction in the suit schedule property and therefore, passed the order directing the defendant to maintain status-quo with regard to structures raised on the suit schedule property.
12. I find no illegality or unreasonableness by the trial Court in passing the order of status-quo. It is an equitable order considering the fact that the defendant is in admitted possession of the suit schedule property. It is certainly for the parties to agitate before the trial Court by leading evidence and to produce the documents to prove their case. Therefore, I do not find any good ground or need to interfere with the order passed by the trial Court. Accordingly, appeal is dismissed. No order as to costs.
Sd/- JUDGE VK