Bannur Nagaraja Manjunath Represented by His GPA Holder Smt Vanajakshi vs Krishna S. Thavaildhar

B. Manohar

Appellant is the plaintiff in O.S. No. 484/2001. Being aggrieved by the order dated 4-8-2011 passed by the XLIV Additional City Civil and Sessions Judge. Bangalore on I.A. No. I wherein the Trial Court refused to permit the appellant to proceed with the construction while partly allowing the application and also restrained the defendant from interfering with the peaceful possession of the plaintiff, the appellant has filed this appeal. The brief facts of the case are as follows:

The plaintiff filed a suit seeking for permanent injunction restraining the defendant from interfering with the peaceful possession in respect of the suit schedule property and sought for damages and other reliefs. He also filed IA. No. I under order 39 Rules 1 and 2 seeking for temporary injunction restraining the defendant, his agents and persons claiming through him from preventing the plaintiff from proceeding with the construction on the suit schedule properly. In the plaint it is averred that Smt. Vatsala Natarajan purchased 1 acre of land in Sy. No. 58/1 situated Jarakabandekaval village. Yelahanka Hobli, Bangalore North Taluk as per the registered sale deed dated 9-8-2001 from the power of attorney of holder K.Krishnakumar. She formed a layout in the said land comprising of 24 sites measuring 30" x 40" and four sites of irregular measurements as per the approved plan of Byatarayanapura City Municipal Council. The said Vatsala Natarajan sold six sites in favour of various persons before 2004. One Sri G.Ramachar purchased site No. 4 from Vatsala Natarajan on 24-7-2002 for a sale consideration of Rs. 1,44,000/- and he was put in possession of the said site. Thereafter. Vatsala Natarajan got converted the said land for non-agricultural purposes on 9-7-2004 after obtaining necessary permission from the competent authority. G.Ramachar executed a registered gift deed in respect of Site No. 4 in favour of his son on 23-9-2004. Thereafter, on the strength of the power of attorney, Sri. G. Ramachar, sold the said site in favour of Yeshwanthraju on 4-1-2006 for a sole consideration of Rs. 3,60,000/-. In turn, Yeshwanthraju sold the site No. 4 in favour of the plaintiff for a sale consideration of Rs. 16,80,000/- on 25-10-2007. Since then the plaintiff has been in possession and enjoyment of the said property. After purchase, katha was changed in the name of the plaintiff and the plaintiff is paying the tax to the BBMP from the year 2010. After obtaining sanctioned plan and building license from the BBMP on 30-10-2010, the plaintiff started constructing the house on obtaining loan of Rs. 14,70,000/- from the Bank of Baroda and the same has to be repaid in 119 monthly installments. When the plaintiff was constructing the building, the defendant tried to interfere with the peaceful possession contending that he has purchased 1 acre of land from Vatsala Natarajan on 14-12-2004. In spite of lodging the police complaint, the police have not taken any action against the defendant. In view of that, the plaintiff filed a suit seeking for injunction restraining the defendant from interfering with the peaceful possession and construction work of the building.

Pursuant to the notice issued by the Court below, the defendant entered appearance and filed written statement contending that the suit filed by the plaintiff is not maintainable and denied the entire averments made in the plaint. It is also contended that as per the agreement of sale dated 27-9-2003 entered into between the defendant and Vatsala Natarajan, the defendant agreed to purchase 01 acre of land in Sy. No. 58/1 and he was put in possession of 01 acre of land. Thereafter, Vatsala Natarajan and her son executed the sale deed on 14-12-2004, hence the defendant became the absolute owner of 01 acre of land. He further contended that Yeshwanthraju, vendor of the plaintiff filed O.S. No. 7885/2007 against the defendant. Since he failed to get the interim order he withdrew the said suit. Further, the defendant filed a suit in O.S. No. 8632/2007 against Yeshwanthraju on the file of the V Additional City Civil Judge and got an interim order. The said suit is still pending consideration. Yeshwanthraju has not filed any written statement in the said suit. Further. Vatsala Natarajan has no right to alienate the property in favour of the vendor of the plaintiff since she has already entered into, an agreement of sale with the defendant and he was put in possession of the property. Neither the plaintiff nor the vendor of the plaintiff will get any right over the said property and sought for dismissal of the suit.

On the basis of the pleadings of the parties, the Trial Court framed the necessary issues.

The parties have produced the documentary evidence. The Trial Court after considering the arguments addressed by the parties and the documents produced by the parties found that in the year 2002 itself. Smt. Vatsala Natarajan formed a layout and sold six sites to the prospective buyers and vendor of the plaintiff G. Ramachar purchased site No. 4 in Sy. No. 58/1, and he subsequently sold the said site in favour of Yeshwanthraju. Yeshwanthraju in turn sold the said site in favour of the plaintiff The agreement entered into between the defendant with Vatsala Natarajan was only on 27-9-2003. Much prior to the agreement of sale, Vatsala Natarajan had already sold site No. 4 in favour of the vendor of the plaintiff. After purchasing the said site, the plaintiff is putting up construction availing loan from the Bank of Baroda and the plaintiff has been in possession and enjoyment of the property and balance of convenience is in favour of the plaintiff. However, the suit O.S. No. 8632/2007 filed by the defendant against Yeshwanthraju is pending consideration before the V Additional City Civil Court. While protecting the right of the defendant, the Court below observed that the entire prayer sought for in I.A. No. I cannot be granted and the plaintiff cannot change the nature of land. The Court below found that the plaintiff has been in possession and putting up construction and he is entitled for protection. Accordingly, allowed I.A. No. I in part and restrained the defendant and his agents from interfering with the peaceful possession of the property. However, while granting interim order, no permission has been granted to proceed with the construction. Being aggrieved by that portion of the order, the plaintiff preferred an appeal challenging the same.

Sri.Chandan Rao, learned counsel appearing for the appellant contended that the Trial Court having come to the conclusion that the plaintiff has been in possession, and enjoyment of the property from the date of purchase and putting up construction, while protecting his right refused to grant permission to proceed with the construction which is contrary to law. Mitch prior to entering into the agreement of sale with the defendant, the Vendor of the plaintiff has purchased the said site No. 4 in the year 2002 itself. The defendant is a subsequent purchaser and he will not get any right over the property, which is already alienated in the year 2002. Hence, the respondent has no right, interest in respect of site No. 4. which was purchased by the plaintiff. After investing huge money and taking loan from a Nationalised Bank, he is putting up construction and if he is not permitted to proceed with the construction, he will be put to great hardship and sought for setting aside the same.

On the other hand, Sri. A.S. Mahesh, advocate appearing for the respondent contended that there is no infirmity or irregularity in the order dated 4-8-2011 made in O.S. No. 484/2011. Further. O.S. No 8632/2007 filed by the defendant against Yeshwanthraju is pending consideration before the V Additional City Civil Court. Further, he has not preferred any appeal challenging the order passed by the City Civil Court granting injunction in favour of the plaintiff. Until the issue is settled after trial, the plaintiff cannot be permitted to proceed with the construction and sought for dismissal of the appeal.

I have carefully considered the arguments addressed by the learned counsel for the parties and perused the pleadings and documentary evidence produced by the parties.

The records produced by the parties prima facie disclose that Vatsala Natarajan formed sites in Sy. No. 58/1 and sold site No. 4 in favour of G. Ramachar on 24-7-2002. Thereafter, she got converted the entire 1 acre of land for non-agricultural purposes on 9-7-2004. The said Ramachar alienated the site No. 4 in favour of Yeshwanthraju as per the registered sale deed dated 4-1-2006, Yeshwanthraju in turn sold site No. 4 in favour of the appellant on 25-10-2007, since then the appellant has been in possession of the said property and on obtaining the sanctioned plan from the competent authority, he is putting up construction. When the construction is half the way, the respondent/defendant tried to interfere with the construction of the said house contending that he has purchased 01 acre of land from Vatsala Natarajan on 14-12-2004.

After hearing the parties, the only point that arise for my consideration in this appeal is -

Whether the appellant has made out a case to giant permission to proceed with the construction of the building, since he has already obtained an order of injunction front the Trial Court?

The records clearly disclose that much prior to the defendant entering into an agreement of sale with Vatsala Natarajan dated 27-09-2003. the vendor of the plaintiff had purchased site No. 4 in Sy. No. 58/1 on 24-7-2002. since the property has already been alienated in favour of the prospective buyers, the defendant will not get any right over the said property. Further, Vatsala Natarajan cannot alienate the property in favour of the defendant. From the date of purchase, the appellant has been in possession and constructing the residential building. If the appellant/plaintiff is restrained from putting up construction he will be put to hardship and irreparable loss. He has obtained loan from the Nationalised Bank for putting up construction. Since Vatsala Natarajan has already sold the said site in favour of the vendor of the plaintiff much prior to the entering into an agreement with the defendant, the appellant became the absolute owner of the said site and he is entitled to put up construction. The order passed by the trial court affects the interest of the appellant. Further, the appellant also undertakes that any construction put up by him may be subject to the result of the suit filed by the appellant and he may be permitted to proceed with the construction. There is some substance in the contention of the appellant. If the appellant is restrained from putting up construction, he will be put to a great hardship. Hence I pass the following:

ORDER

The appeal filed by the appellant is allowed and he shall be permitted to proceed with the construction, subject to the result of the suit in O.S. No. 484/2011/O.S. No. 8632/2007.

Observations made during the course of the order in this appeal shall not be taken into consideration while disposing of the matter.