K.M. Muniraju vs Saroja Chandrashekaran and Others

B.S. Patil, J.—These appeals are filed challenging the common order dated 02.07.2015 passed on IA Nos. 2 & 3 in O.S. No. 4449/2015 by the learned VI Addl. City Civil & Sessions Judge, Bengaluru. Since common facts and questions arise for consideration, they are clubbed, heard together and disposed of by this common judgment.

By the impugned order, the Trial Court has, while permitting the 1st defendant to go on with the construction activities in the suit properties, has made it clear that defendants 1 to 4 would not be entitled to claim any equitable reliefs in their favour in case plaintiff succeeds in the suit in establishing his title over the property. The Trial Court has observed that defendants 1 to 4 were at liberty to alienate the suit property subject to the condition that there shall be a specific recital in the documents that might be entered into between 1st defendant or defendants 2 to 4 with third parties that the said transaction would be subject to the final result of the suit.

It is necessary to notice here that plaintiff has filed the suit seeking relief of declaration that plaintiffs are the absolute owners of the suit schedule property and for a declaration that the sale deed dated 25.11.1992 and the exchange deed dated 27.08.2011 were not in respect of the suit schedule property and as such they were not binding on the plaintiff. Plaintiff has also sought for possession of the suit property and for permanent injunction against the defendants from proceeding with the construction apart from mandatory injunction to direct the 1st defendant to pull down the illegal construction on the suit property. Along with the suit, plaintiff has filed two applications IA Nos. 2 & 3. IA No. 2 was filed to restrain the defendants from alienating the suit property, whereas IA No. 3 was filed to restrain the defendants from putting up any construction over the suit property.

The suit schedule property is described as 10 guntas of land comprised in Sy. No. 10/2 situated at Kaggadasapura, K.R. Puram Hobli, Bengaluru East Taluk. Plaintiff has urged that he has purchased the suit property as per sale deed dated 07.08.2006 from the family members of Dogadu Muniyappa who were the absolute owners of the same and has secured conversion of the land on 09.09.2009 for non-agricultural purpose. He has urged that khatha certificate has been issued in his name by the BBMP and he has paid upto date tax. It is alleged that the defendants started dumping construction material at the spot with an intent to put up construction. This made the plaintiff to file O.S. No. 5272/2014, wherein the 1st defendant appeared and contested the claim urging that defendants 2 to 4 had executed an exchange deed dated 27.08.2011 in her favour and as per the exchange deed, site No. 4, H.A.S.B. Khatha No. 324/3 of Kaggadasapura was conveyed to her in exchange for her flat premises bearing No. A-2, site bearing No. 1 Municipal No. 1686/522/91/01-668 situated at Tulasi Theatre Road, Munekolalu Village, Varthur Hobli, Bangalore South Taluk. It is also urged that defendant No. 2 and her husband had purchased the said site No. 4 vide Sale Deed dated 25.11.1992 from Muniswamy, S/o. Dodda Muniyappa and his son M. Muniraju. It was contended by the 1st defendant that BBMP had assigned municipal No. 219/565/324/3A to the said site. Defendant No. 1 asserted that she is entitled to put up construction on the suit property and urged that she had already filed suit for permanent injunction in O.S. No. 26025/2014 against the plaintiff herein and obtained an ex parte order of temporary injunction. It is also contended that apart from site No. 4, site No. 5 was also subject matter of exchange in her favour which has been stated as item No. 2 in O.S. No. 26025/2014.

According to the plaintiff exchange deed itself is created one inasmuch as it was shocking to know that property worth Rs. 96,25,000/- was exchanged for a flat which was worth Rs. 27,40,000/-. It was also urged that plaintiff had nothing to do with site No. 4 over which defendants claimed right. In the application, it was alleged that defendant No. 1 was proceeding in great haste with the construction by trespassing into the property. Hence, he sought for an order of temporary injunction.

Defendant No. 1 filed separate written statement as also defendant No. 2. They denied the plaint averments and contended that plaintiff in collusion with defendant No. 3 had filed collusive suit for partition; that after filing the suit for injunction by the defendant in O.S. No. 26025/2014 and after obtaining the order of injunction, plaintiff has filed the present suit. Defendant No. 1 contended that person who executed the exchange deed was in possession of the property ever since the date of purchase made by them in the year 1992 and that they have obtained possession of the property under valid document and was entitled to put up construction.

It is evident from the pleadings of both parties and the findings recorded by the court below that both parties have produced documents of title, khatha certificates, tax paid receipts to trace the passing of title.

As per the defendants, one Muniswamy had acquired the property Sy. No. 10/2 by way of inheritance; a layout was formed consisting of several sites in the said land. Muniswamy and his family members partitioned the property amongst them. Thereafter, Muniswamy and his son M. Muniraju sold Site No. 4 vide registered sale deed dated 25.11.1992 in favour of 2nd defendant and her husband. After the death of the husband of 2nd defendant, 2nd defendant along with her children transferred the said site along with another site in favour of 1st defendant as per exchange deed duly registered on 28.07.2011. It is thus clear that both parties are relying upon the documents of title and claiming that they are the absolute owners of the property.

1st defendant has since put up construction over the property because there was an order of temporary injunction in her favour in the suit filed by her. One thing is clear that both the plaintiff and 1st defendant ultimately trace their title to one Muniswamy. Plaintiff''s allegation is that exchange deed is tainted with mala fides and is not a genuine one. The issue raised before the court has to be ultimately adjudicated to unearth the truth.

Admitted facts remain that plaintiff has come into picture with effect from 2006 by virtue of the sale deed executed in his favour. On the other hand, documents produced by the defendants show that as back as in the year 1992, a sale deed was executed by Muniswamy and his son Muniraju in favour of 2nd defendant and her husband. The Trial Court has come to the conclusion that even as per the allegations of the plaintiff, defendant had undertaken construction work in the property. 1st defendant having obtained necessary license and permission from the BBMP has put up construction. The photographs produced by the parties disclose that substantial construction had been put up even when the matter was pending before the Trial Court. Now the construction has been completed. Hence, taking note of all these aspects, I am of the view that dismissal of application to restrain 1st defendant from putting up construction over the suit schedule property cannot be found fault with, particularly because 1st defendant had raised loan for construction of the building and had indeed obtained license and sanction plan for putting up construction.

Mr. Jayakumar S. Patil, learned Senior Counsel appearing for the appellant contends that construction has been put up by taking undue advantage of an order of temporary injunction obtained in O.S. No. 26025/2014 and that 1st defendant shall not be allowed to take advantage of such injunction. He, therefore, contends that the court below was not at all justified in permitting the plaintiff to alienate the apartments constructed in the suit property pending disposal of the suit, particularly because the court has recorded a finding that prima facie case was made out by the plaintiff and the matter required trial. He also points out that the observations made by the court below in paragraph 23 that if in case plaintiff succeeded in establishing his title and the suit were to be decreed, at that time the state of affairs as they stood at the time of passing of the decree would be material for granting relief to the plaintiff, are illegal.

Learned counsel for the respondent has supported the findings recorded by the court below and indeed urged that no prima facie case whatsoever has been made out by the plaintiff.

After careful examination of the entire materials and in the light of the discussion made above, I am of the view that fact that 1st defendant has come in possession of the property and has put up construction has been prima facie probablized by the pleadings and the materials on record. 1st defendant traces the title of her vendor from the title deed of the year 1992. 1st defendant has availed loan and has put up construction by obtaining sanctioned plan. Any alienations of the apartments constructed in the suit property have to be, if at all, expressly made subject to the result of the suit. The Trial Court has directed that an express condition shall be put by 1st defendant while entering into any transaction with third parties in respect of the construction put up over the suit property. The Trial Court has passed this order keeping in mind irreparable injury and loss that would result if 1st defendant who has constructed the building and completed the same by investing huge amounts is restrained from dealing with the property.

Plaintiff has not demonstrated how the suit property is distinct and separate from the one sold in favour of 2nd defendant and her husband way back in the year 1992. At this stage, the bare assertions are found based on the entries in the corporation records. Similar entries are also found in the name of 1st defendant and her vendor. Therefore, in my view, the order passed by the court below cannot be termed as illegal and unsustainable.

However, in my view, the court below was not right and justified in holding that defendants 1 & 2 to 4 were at liberty to alienate the suit property. There was no question of granting liberty to the defendants to alienate the suit property in the suit filed by the plaintiff and while passing orders on the applications filed by the plaintiff to restrain the defendants from alienating the suit property. The court below could have either allowed the application or dismissed the same. It ought to have been made clear that if the defendants sell the property during the pendency of the suit, taking advantage of the dismissal of the application, the same shall be subject to the result of the suit. The further conditions stipulated stating that in case the defendants intend to sell the property, they shall specifically state in the documents to be executed in favour of the purchasers that the said transactions would be subject to the final result of the present suit, in my view, would protect the interest of the plaintiff.

In the light of the above, I am of the view that no interference with the order under challenge is called for except making it clear that the direction by the court below in paragraph 1(c) of the operative portion of the order observing that ''defendants 1 & 2 to 4 are at liberty alienate the suit property'', is modified to read that ''the alienation, if any, made to the suit property by the defendants would be subject to the result of the suit and would be governed by the principles of lis pendens''. The condition imposed by the court below to the effect that there shall be a specific recital in the document stating that the transaction would be subject to the final result of the present suit is not disturbed.

Appeals are accordingly, disposed of.