IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MISCELLANEOUS FIRST APPEAL No.2536/2019(CPC) C/W MISCELLANEOUS FIRST APPEAL No.10162/2018(CPC) In MFA No.2536/2019 BETWEEN 1. Smt. Uma W/o. Late Ramanjani, Aged about 61 years, 2. Smt. R.Asha, D/o. Late Ramanjani, Aged about 42 years, 3. Smt. K.R.Deepa, D/o. Late Ramanjani, Aged about 40 years, Rep. by GPA Holder Appellant No.1 4 Smt. R.Sowmya, D/o. Late Ramanjani, Aged about 38 years, All are residing at No.629, Kodigehalli, Opp. to Gangamma Temple, Sahakaranagar Post, Bengaluru-560092.
…Appellants (By Sri. Amaresh A Angadi, Advocate) AND Smt. Priya Praveen, W/o. Praveen Babu Vengaiah Naidu, Aged about 37 years, R/at No.928/A, 11th ‘C’ Cross, Vyalikaval, Bengaluru-560003.
(By Sri. K.S.Harish, Advocate) …Respondent This MFA is filed under Order 43 Rule 1(r) of CPC, against the order dated 28.02.2019 passed on I.A.No.1 in O.S.NO.6481/2018 on the file of the XXXVII Additional City Civil and Sessions Judge (CCH-38), Bengaluru City, allowing I.A.No.1 filed under Order 39 Rule 1 & 2 read with Section 151 of CPC.
In MFA No.10162/2018 BETWEEN 1. Smt. Uma W/o. Late Ramanjini, Aged about 61 years, 2. Smt. R.Asha, D/o. Late Ramanjini, Aged about 42 years, 3. Smt. K.R.Deepa, D/o. Late Ramanjini, Aged about 40 years, 4 Smt. R.Sowmya, D/o. Late Ramanjini, Aged about 38 years, All are residing at No.629, Kodigehalli, Opp. to Gangamma Temple, Sahakaranagar Post, Bengaluru-560092.
(By Sri. Amaresh A Angadi, Advocate) AND Sri. K.Prakash, S/o. M.Krishna Murthy, Aged about 47 years, Residing at No.1283 C, 36th Cross, 19th Main, 5th Block, HBR Layout, Bengaluru-560043.
…Appellants …Respondent (By Sri. K.S.Harish, Advocate) This MFA is filed under Order 42 Rule 1(r) of CPC, against the order dated 28.11.2018 passed on I.A.No.1 in O.S.NO.6489/2018 on the file of the XXXIX Additional City Civil and Sessions Judge, Bengaluru, allowing I.A.No.1 filed under Order 39 Rule 1 & 2 read with Section 151 of CPC.
These appeals coming on for admission this day, the court delivered the following:
JUDGMENT These two appeals are disposed of at the stage of admission having heard the learned counsel for the appellants and the respondents.
2. The respondent in MFA 2536/2019 is the plaintiff in O.S.6481/2018 and the respondent in MFA 10162/2018 is the plaintiff in O.S.6489/2018. O.S.6481/2018 is pending on the file of XXXVII Additional City Civil and Sessions Judge (CCH-38), Bengaluru and O.S.6489/2018 before XXXIX Additional City Civil Judge (CCH-40), Bengaluru. In both the suits the trial court disposed of applications for grant of temporary injunction restraining the appellants/defendants from interfering with plaintiffs peaceful possession and enjoyment of the properties described in the schedule to the plaint filed in respective suits. The subject matter of O.S.6481/2018 is a site bearing No.402 and the subject matter of O.S.6489/2018 consists of two sites bearing numbers 400 and 401. All the three sites are said to be situated in a layout formed by NTI Employees’ Housing Co-operative Society Limited (‘NTI Society’ for short). It is the plaintiff’s case in O.S.6481/2018 that she purchased site No. 402 on 13.6.2018 from Syed Basha and on the same day the plaintiff in O.S.6489/2018 purchased site Nos. 400 and 401 from Krishna V and Chandrashekar. Syed Basha, Krishna V and Chandrashekar are said to be allottees of sites from NTI Society. It is pleaded that the Government of Karnataka by issuing preliminary notification dated 3.1.1985 acquired certain lands including Sy. No. 13/1 of Kodigehalli Village, Bengaluru North Taluk, for sake of NTI Society and final notification was issued on 23.9.1986. After acquisition, the society formed a layout and allotted the sites to its members. Syed Basha, Krishna V, Chandrashekar were thus allotted sites. Therefore, the plaintiffs claim to be in possession of these three sites by virtue of sale deeds executed in their favour on 13.6.2018. As they faced interference with their possession from the defendants, they filed two suits for permanent injunction. They also made applications for grant of temporary injunction.
3. The first defendant is the wife of Ramanjini and defendants 2, 3 and 4 are his daughters. Ramanjini is the son of one Thammanna who acquired 1 acre 15 guntas of land in Sy. No. 13/1 in the partition that took place on 26.8.1955. Thammanna died on 15.1.1977 and thereafter Ramanjini succeeded to the property. Defendants contended that their land measuring 1 acre 15 guntas in Sy. No. 13/1 was not the subject matter of acquisition. Till the year 2011, the revenue records stood in the name of Ramanjini. The Tahsildar removed the name of Ramanjini by giving reason that the said land had been acquired for the benefit of the society. Challenging the removal of his name, Ramanjini filed a writ petition. Though in the beginning an interim order was granted, the writ petition was dismissed and thereafter Ramanjini filed a writ appeal before this Court. It was allowed and therefore the defendants’ contention is that this land was not the subject matter of acquisition. Defendants are in possession of 1 acre 15 guntas of land. The plaintiffs have filed false case against them.
4. The trial court has arrived at a conclusion that there was acquisition in favour of the society and that the plaintiffs purchased the sites from the allottees. The trial court has also observed that Ramanjini had filed O.S.3762/2014 and in the judgment passed in the said suit there is an observation that Ramanjini being the plaintiff had admitted that possession was with the Government and thereafter it was taken by NTI Society. His submission would show that society formed a layout. Therefore, the conclusion of the trial court is that land in Sy. No. 13/1 was subject matter of acquisition. Plaintiffs being the purchasers from allottees are in possession of the three sites. With these findings the trial court came to conclusion to grant an order of temporary injunction.
5. Learned counsel for the appellants argues that 1 acre 15 guntas in Sy. No. 13/1 was not acquired. It becomes clear from the judgment passed by this court in the writ appeal. Referring to para 4 of the judgment in the writ appeal, learned counsel argues that 1 acre 15 guntas in Sy. No. 13/1 is in the possession of the defendants. Actually the plaintiffs interfered with defendants possession and therefore the trial court should not have granted an order of injunction.
6. Learned counsel for the respondents argues that the defendants cannot dispute the acquisition proceedings. Entire land in Sy. No. 13/1 is acquired. After formation of layout, the society allotted the sites to its members. Syed Basha, Krishna V and Chandrashekar were the allottees and they sold their sites to the plaintiffs. A layout was formed with the approval of the Bengaluru Development Authority. The trial court has taken note of these aspects of the matter while granting injunction. Discretion is exercised properly and therefore there are no grounds to interfere with the impugned order.
7. After hearing both sides it has to be stated that actual dispute revolves around 1 acre 15 guntas in Sy.No. 13/1 said to be belonging to the defendants. The total extent of Sy. No. 13/1 appears to be 11 acres 34 guntas. Though the entire land was notified under Section 4 (1) of the Land Acquisition Act, when the final notification was issued under Section 6(1), only 5 acres 19 guntas was sought to be acquired. The name of the owner of the acquired land is shown as Seethamma, wife of Venkatappa. This leads to infer that probably the land belonging to Thammanna, father of Ramanjini might not have been acquired. It may be true that the plaintiffs might have purchased the sites from the allottees of the society. But in the context of defence taken by the defendants, the plaintiffs have to prove that their sites are situated in the acquired land only. It has to be stated that in writ appeal 4036/2013 there is an observation that 1 acre 15 guntas of land that stood in the name of Ramanjini was not the subject matter of acquisition. Statement to this effect was made by the Tahsildar in the open court. This document was not before the trial court and therefore there was no occasion for the trial court to look into this document as this order was passed on 11.3.2019, i.e., subsequent to passing of the impugned order. However, the order in writ appeal cannot be ignored. Therefore, in the light of these circumstances, I am of the opinion that the parties in the suit have to maintain status-quo of the property till disposal of the suit.
8. Learned counsel for the respondents makes a submission that the adjacent land owners have constructed houses and if these appeals are allowed and injunction is vacated, the interest of the plaintiffs will be affected. Therefore, the plaintiffs are ready to give an undertaking that they will not claim equity in case they fail in the suits. I do not think that this kind of undertaking is necessary to be taken in the context of circumstances made out. Therefore, the following order : -
(i) Appeals are disposed of by modifying the order of the trial court. The plaintiffs and defendants have to maintain vacant nature of the suit property till the disposal of the suits.
(ii) The trial court may expedite the disposal of the suits.
Any observation made in this order shall not influence the trial court while disposing of the suits on merits.
Sd/- JUDGE ckl