Sri Annayappa vs Smt. Javaramma (Since deceased rep, by L.Rs. Sri Basavaiah and Others)

A.N. Venugopala Gowda, J.—With the consent of learned Counsel on both sides, appeal is taken up for final hearing.

The Respondent/Plaintiff, instituted O.S. 25096/2011 in the City Civil Court, Bangalore, against the Appellant/Defendant to pass a decree of

perpetual injunction, restraining the Appellant from interfering with or obstructing her lawful possession and enjoyment of the property shown in the

schedule of the plaint, namely, land measuring 22.18 guntas i.e., 26879 Sq.Ft approximately 25 guntas comprising site Nos. 68 to 73 in Sy. No.

63/3 of Sree Gandhada Kaval Village, Yeshwanthpur Hobli, Bangalore North Taluk, being bounded on East by private property, West by 30 feet

width road leading to Magadi Road on the north and pipeline road on the south, North by Site No. 67 and South by remaining land in Sy. No.

63/3. Alongwith the suit, I.A.1 was filed to pass an order of temporary injunction and restrain, the Defendant from alienating, encumbering or

changing the nature of suit property, pending disposal of the suit. The Appellant filed written statement, objections to I.A.1 and opposed the

prayers therein.

Pending hearing and disposal of I.A.1, an ex parte order of temporary injunction was passed on 14.01.2011. I.A.2 was filed by the Plaintiff to

direct the jurisdictional police to stop the construction undertaken by the Defendant.

The Trial Court upon consideration of the rival contentions and perusal of the record of the case, allowed both the applications, Questioning the

orders passed on I.As. 1 and 2 by the learned Trial Judge, this appeal has been filed by the Defendant.

Learned Counsel appearing for the Appellant contended that, the learned Trial Judge has failed to appreciate the fact that the Defendant has

disposed off the sites in question, in the year 2003-2004 itself, under registered sale deeds, the certified copies of which alongwith the

encumbrance certificates were produced as Annexures, Learned Counsel submitted that, instead of dismissing the applications, the order passed

allowing the same, is erroneous and illegal. Learned Counsel further contended that, the suit being bad for non-joinder of necessary and proper

parties i.e., the purchasers of site Nos. 68 to 73, the order passed, impugned in this appeal, is illegal. Learned Counsel submitted that, there being

dispute with regard to identity of the suit property and prima fade case having not been made out, I.A.1 ought to have been dismissed and

consequently, I.A.2 ought to have been rejected. The order passed otherwise, being illegal, may be set-aside.

Learned Counsel appearing for the legal representatives of the Respondent/Plaintiff, on the other hand contended that, the Appellant has no

manner of right, title or interest over the plaint schedule property and his actions being highhanded and illegal, the Trial court being convinced that

there exists prima facie case and that the Plaintiff is entitled to the reliefs prayed for passed the impugned order in exercise of its discretionary

jurisdiction and the same being with reference to the material on record, interference in the matter is not called for.

In view of the rival contentions and the record of the case, copies of which was made available for my perusal by the learned Counsel appearing

for the parties, the point for consideration is;

Whether the impugned order is arbitrary, perverse and illegal?

The Respondent/Plaintiff executed General Power of Attorney (GPA) dated 02.01.1989 in favour of the Appellant/Defendant, to an, extent of

20 guntas of land bearing Sy. No. 63/3 situated at Srigandadakavalu Village, Yeshwanthpur Hobli, Bangalore North Taluk. The said extent of

property has been demarcated with boundaries. The Appellant and the Respondent sold sites No. 63 to 73, formed in Sy. No. 63/3 to different

persons.

This suit was filed by the Respondent against the Plaintiff on 12.01.2011. Written statement and objections were filed to the suit. In the written

statement, at para 12, the Appellant has stated that by virtue of GPA dated 02.01.1989, he executed sale deeds as a bonafide GPA holder and

has furnished the details of the sale deeds executed, in favour of different persons. According to him, sites bearing Nos. 68 to 73 are not vacant

sites and that, the purchasers thereof have constructed buildings in their respective sites and have started dwelling. Photographs in respect of site

Nos. 68 to 73 have been produced as Annexures 8 to 13. The certified copies of the sale deeds have been produced as Annexures 1 to 7. The

encumbrance certificates of the sites sold have been produced as Annexures 14 to 22. Thus, prima facie it appears that, the. Appellant is not

holding any portion of the property in respect of which the Plaintiff executed the GPA dated 02.01.1989. The said GPA does not show any site

numbers. The Appellant has not produced the layout plan. In the circumstances, the Trial Court is right in observing that the Defendant has not

made out grounds to show that sites No. 68 to 73 are part of the property covered by GPA.

The fact that the Plaintiff is the owner of 5 acres 32 guntas of land in Sy. No. 63/3 of Sunkadakatte Palya, Sri Gandhada Kaval Dhakale,

Yeshwanthpur Hobli, Bangalore North Taluk, is not in dispute. The GPA dated 02.01.1989 being in respect of about 20 guntas of land. Even

according to the Defendant/Appellant, in the said 20 guntas of Sand, sites No. 68 to 73 were formed and sold. Thus, the Appellant having ceased

to hold any property, the Trial Court is justified in allowing I.A.1.

In order to see that the temporary injunction order passed is given effect to, the Trial Court is justified in allowing I.A.2.

The Appellant having admitted the fact that, by virtue of GPA dated 02.01.1989, he executed the sale deeds detailed in para 12 of the written

statement, has no right to meddle with the suit property. In view of the details of the sale deeds furnished by the Appellant in the written statement

and he Having ceased to hold any portion of the property, cannot feei aggrieved by the impugned order, in the circumstances, the appeal is

misconceived.

In the result, the appeal is devoid of merit and shall stand dismissed.

However, it is made clear that, the legal representatives of the Plaintiff i.e., the Respondents herein, shall not disturb the possession and enjoyment

of the sites/properties which are in possession and enjoyment of the persons, who have purchased the properties from the Defendant on the basis

of GPA dated 02.01.1989 and as stated in para 12 of the written statement filed to the suit. The impugned order shall operate only against the

Appellant and not the purchasers of the property/sites.

The Trial Court to decide the suit on its merit and in accordance with law, uninfluenced by the findings/observations in the order passed by it on

I.As 1 and 2 or the findings/observations made herein, which is limited for examining the correctness of the impugned order.

No costs.