Sharada Krishnapa vs Jhansi R. and Others

B. Sreenivas Gowda, J.—Plaintiff in O.S. No. 6323/2015 has preferred this Miscellaneous First Appeal challenging the order dated 03.10.2015 passed by the trial Court rejecting I.A.1 filed by the plaintiff under Order 39 Rule 1 and 2 CPC and allowing I.A.2 filed by the defendants under Order 39 Rule 4 thereby declining to grant an order of temporary injunction in favour of the plaintiff.

I have heard the learned Counsel for the parties and perused the order impugned.

Sri. Raghavendra. K., learned Counsel for the appellant submits that the suit site bearing No. 4 situated at Uttarahalli Hobli, Bangalore South Taluk is one of the sites carved out of Sy. No. 17 of Uttarahalli Village. Survey No. 17 was re-granted in favour of the father of one Venkatappa under Inams Abolition Act. Said Venkatappa, after the death of his father, executed Power of Attorney in favour of one Chikkaiah empowering him to develop the land bearing Sy. No. 17. Said Chikkaiah after developing the land formed layout and sites and he sold the suit site in favour of Nagarathnamma through a registered Sale deed dated 24.1.1981 and from the said Nagarathnamma, the plaintiff has purchased it. Since the date of purchase, plaintiff is in possession and enjoyment of the suit site. The defendants having no manner of right, title or interest over the suit schedule property unnecessarily caused obstruction for the peaceful possession and enjoyment of the plaintiffs suit site. The trial Court without considering the plea of the plaintiff declined to grant an order of injunction. He submits that the site claimed by the defendants is all together a different site from that of the suit site. It has nothing to do with the suit site measuring 40 x 30. The trial Court without considering this material aspect of the matter has committed an error in declining to grant an order of temporary injunction sought by the plaintiff. Therefore, he prays for granting an order of temporary injunction restraining the defendants from interfering with the peaceful possession and enjoyment of suit site by the plaintiff.

In response to his submission, Sri. Sheshadri.N.S., learned Counsel for the respondents submits that the plaintiff has never been in possession of the suit property. The land bearing Sy. No. 17 and adjacent survey numbers were acquired by CITB and bulk allotment of sites was made by the BDA in favour of Bhavani Housing Co-operative Society Limited through a registered Sale deed. It was further contended by the defendants that the suit site was allotted to one Mruthyunjaya by Bhavani Housing cooperative Society Ltd., and he, in turn, sold it in favour of one Vijaya Kumar and Vijaya Kumar gifted the same to his sister Smt. Vani and Smt. Vani sold the suit property to the defendants under two separate registered sale deeds dated 1.4.2015. The said Vijaya Kumar, brother of the vendor of the defendants, filed a suit in O.S. No. 9628/2005 against the vendor of the plaintiff viz., Nagarathnamma, which came to be decreed restraining Nagarathnamma from interfering with the possession and enjoyment of the suit property by Vijaya Kumar. He further submits that the plaintiff had also filed a suit in O.S. No. 1369/2011 against the brother of the vendor of the defendants'' viz., Vijaya Kumar for the relief of permanent injunction in respect of very site and an application made for grant of an order of temporary injunction was rejected and finally the plaint of the said suit came to be rejected under Order 7 Rule 11 of CPC. Even RFA No. 852/2008 filed by the vendor of the plaintiff viz., Nagarathnamma, before this Court challenging the judgment and decree passed by the trial Court in O.S. No. 9628/2005 was also dismissed on 22.08.2008.

The learned Counsel for the respondents further submits that the plaintiff has filed the present suit by suppressing the institution of two previous suits and therefore he prays for dismissal of this appeal by imposing costs on the appellant.

I have carefully gone through the impugned order. The trial Court in Paragraphs 15 and 16 of the impugned order has categorically held that the subject matter involved in O.S. No. 9628/2005, O.S. No. 1369/2001 and in the present suit are one and the same. It has held that the suit filed by Vijaya Kumar, brother of vendor of the defendants, against Nagarathnamma, i.e., the vendor of the plaintiff in O.S. No. 9628/2005 for the relief of permanent injunction was decreed restraining Nagarathnamma from interfering with the possession and enjoyment of the suit property by Vijaya Kumar. The suit filed by the plaintiff in O.S. No. 1369/2011 against Vijaya Kumar, brother of vendor of the defendants restraining Vijaya Kumar from interfering with the possession of the plaintiff over the suit schedule property was dismissed. Considering the above facts and circumstances of the case the Trial Court was justified in vacating the ex-parte order of temporary injunction granted in the first instance restraining the defendant from interfering with the possession and enjoyment of the property over the suit land by rejecting I.A. No. 1 filed by the plaintiff under Order 39 Rule 1 and 2 of CPC and allowing IA No. 2 filed by the defendants under Order 39 Rules 1 and 2 of CPC with costs.

I have carefully gone through the impugned order passed by the trial court and I do not find any merit in this appeal and it is liable to be dismissed as devoid of merit.

At this stage the learned Counsel for the plaintiff - appellant herein fairly admits that Sy. No. 17 along with other lands were acquired by Bangalore Development Authority. However the plaintiff has not yet received the compensation. Whether the plaintiff received the compensation or not, when once entire survey number No. 17 was acquired, plaintiff cannot contend that he continues to be in possession of a site carved out of Sy No. 17. Whereas, the case of the defendant is that Sy. No. 17 and adjacent survey numbers were acquired by the then CITB and bulk allotment of sites were made in favour of Bhavani House Building Co-operative Society and thereafter the said Society allotted the suit site in favour of one Mruthyunjaya who in turn sold it in favour of Vijayakumar who in turn gifted it in favour of his sister Vijaya from whom the defendants have purchased under two separate registered sale deeds. After purchase, Katha of the suit property standing in the name of the vendor of the defendants changed into their names and they are in possession and enjoyment of the suit property.

It is also to be noted that the suit O.S. No. 9628/2003 filed by Vijaykumar, brother of the vendor of the defendants against the vendor of the plaintiff viz., Nagarathnamma for the relief of permanent injunction restraining her from interfering with the possession and enjoyment of Vijaykumar over the suit property was decreed and on the other hand the suit O.S. No. 1369/2011 filed by the very plaintiff against the said Vijaykumar for the relief of permanent injunction restraining Vijaykumar from interfering with the possession and enjoyment of the suit property by the plaintiff was dismissed. If that is so, the plaintiff should have disclosed at least the suit filed by her in O.S. No. 1369/2011 against Vijaya Kumar, brother of the vendor of the defendants, if not about the suit filed in O.S. No. 9628/2005 by the said Vijaya Kumar against Nagarathnamma, vendor of the plaintiff. This conduct on the part of the plaintiff would show that the plaintiff has not approached the Trial Court with clean hands and therefore defendants have to be compensated by directing the appellant to pay some cost to the defendants - respondents herein.

Hence the following order.

Appeal is dismissed with cost of Rs. 10,000/-payable to the defendants within one month from today. If the cost is not paid within one month time from today, defendants are at liberty to recover it by filing an Execution Petition.

In view of dismissal of the appeal, I.A. No. 1/2015 for stay does not survive for consideration. Accordingly, I.A. No. 1/2015 is rejected.