IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MISCELLANEOUS FIRST APPEAL NO.4904/2019 (CPC) BETWEEN:
1. SMT. UZMA AFROZ BANU D/O SYED AMEER PASHA WIFE OF SYED TABREZ SIRAJ AGED ABOUT 44 YEARS 2. SMT. SUMMAIYA D/O SYED AMEER PASHA WIFE OF MUSTHAQ AHMED AGED ABOUT 46 YEARS REPRESENTED BY HER GPA HOLDER SMT. UZMA AFROZ BANU BOTH ARE RESIDING AT NO.36, FLAT NO.2014 15TH CROSS, 11TH STAGE NEAR CMR NATIONAL PUBLIC SCHOOL KACHARKANAHALLI HRBR LAYOUT BANGALORE – 560 084 … APPELLANTS (BY SRI S.P.S.KHADRI, ADVOCATE) AND:
SRI B.M.CHAMPAKDHAMA SON OF SRI B.C.MYUDDANNA AGED ABOUT 41 YEARS RESIDING AT BILISHIVALA VILLAGE KOTHANUR POST, BIDARAHALLI HOBLI BANGALORE EAST TALUK BANGALORE – 560 077 …RESPONDENT (BY SRI K.R.BHARADWAJ, ADVOCATE FOR C/R) THIS MFA IS FILED U/O 43 RULE 1(r) OF CPC AGAINST THE ORDER DATED 30.05.2019, PASSED ON IA NO.1 IN O.S.NO.353/2019, ON THE FILE OF XXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH–7), REJECTING IA NO.1 FILED UNDER ORDER 39 RULE 1 & 2 OF CPC READ WITH SECTION 151 OF CPC.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T 1. Plaintiffs in O.S.No.353/2019 on the file of XXII Additional City Civil Judge, Bengaluru, have preferred this appeal challenging the order dated 30.05.2019 on I.A.No.1 filed under Order 39 Rules 1 & 2 of CPC.
2. I have heard learned counsel for the appellants and learned counsel for the respondent.
3. Plaintiffs’ case is that they are in possession of the suit property being purchasers in a public auction held on 12.05.2010. It appears that one Shaikh Vaseem Ahmed had borrowed money from Bank of India and since he failed to repay the loan, the Bank proceeded to recover the loan amount and in that course, the suit property situated in the II floor was brought to auction. The plaintiffs complain of disturbance to their possession by the defendant and therefore they have filed a suit claiming the relief of permanent injunction to restrain the defendant from interfering with their possession of the suit property.
4. Defendant’s case is that he is the absolute owner of the property bearing site No.4M-401 situated at Hennur- Banaswadi Road, III Block, Bengaluru. He purchased the said property from one M.Chetan Prakash who had earlier purchased the same in public auction held on 30.06.1989 by the Bangalore Development Authority. Mr.M.Chetan Prakash had filed a suit in O.S.No.7214/1994 for possession against Mrs. Fathima Mary and obtained a decree. Mrs. Fathima Mary had also earlier filed a suit in O.S.No.1481/1984 against Bangalore Development Authority and it was dismissed. In spite of dismissal of her suit, she sold the property to one J.Janakiram. It is contended that since the property was acquired by Bangalore Development Authority, Mrs.Fathima Mary had lost her right, if any, she had over the property and consequently she did not have right to execute a sale deed in favour of Mr.J.Janakiram. It appears that Mr.J.Janakiram sold the property to Mr.Shaikh Vaseem Ahmed who mortgaged the property to Bank of India. Therefore, the defendant contends that Mr.Shaikh Vaseem Ahmed had no right to mortgage the property to the Bank and therefore, the public auction held by the Bank was illegal and that the plaintiffs do not derive any right or title over the suit property.
5. The trial court, on consideration of the materials placed before it, came to conclusion that prima facie the plaintiffs failed to prove their title over the property. It has found strength in the contentions taken by the defendant, and therefore, rejected the application-I.A.No.1 filed by the plaintiffs.
6. The suit in O.S.No.353/2019 is for permanent injunction, and therefore, the plaintiffs have to prove their possession over the suit property on the date of the suit. The plaintiffs have produced a document i.e. tax paid receipt standing in their names. On perusal of the entire order of the trial court, what is forthcoming is that it has not arrived at a conclusion as to who was in possession on the date of the suit. It has only proceeded to examine title over the suit property for granting an order of temporary injunction.
7. The plaintiffs claim to be the auction purchasers; at the same time, the contentions taken by the defendant show that the property was acquired by the Bangalore Development Authority. But what is to be noted here is that when Mr.M.Chetan Prakash filed a suit in O.S.No.7214/1994 for possession against Mrs. Fathima Mary and obtained a decree, it is not forthcoming whether he put the decree into execution and obtained possession. When this material is not available before the Court, the tax paid receipt produced by the plaintiffs assumes importance and shows that they were probably in possession of the suit property on the date of the suit. Whether the plaintiffs’ possession is lawful or not is not important here but possession is important. In these circumstances, I am of the opinion that both the parties shall maintain status quo with regard to possession of the suit property till disposal of the suit. With this observation, this appeal is disposed of.
Sd/- JUDGE hkh.