G. Lakshmi Narayana Reddy Vs. A.M. Kumar and Others - Court Judgment

Excerpt:
civil procedure code, 1908 - order 43, rule 1(r), order 39, rule 1 and 2 -transfer of property act, 1882 -section 52 - possession of property €“execution of sale deeds - illegal construction - appellant/plaintiff is the absolute owner in possession and enjoyment of property and according to plaintiff, his mother executed a gift deed in respect of suit property as per registered gift deed - thereafter, plaintiff constructed house and fenced property - plaintiff filed suit against respondent/ defendant no.3 along with others to restrain them from interfering with peaceful possession of property €“ courts below dismissed appeal €“ hence instant appeal issue is €“ whether suit filed for declaration that sale deeds executed are not binding on plaintiff is maintainable and whether predecessors-in-title of respondent/defendant no.3 have any title and claim any right, title or interest over property court held - court below prima facie found that authenticity of revenue records were doubtful and could not establish title of plaintiff to property - documents relied upon by them have been taken note by 17court below in a finding that plaintiff failed to make out a prima facie case - as rightly contended by respondent no.3, if any restraint order is passed, directing property to be maintained in status-quo, huge investment made by 3rd defendant would be rendered idle causing recurring and irreparable loss and injury to interest of 3rd defendant - if plaintiff succeeds, he is protected by principle of lis pendens under section 52 of the act, 1882 - purchaser will purchase the property at their risk subject to result of litigation - defendant no.3 who disposes of property will also be governed by said principle of lis pendens -trial court has exercised its discretion in accordance with law keeping in mind the prima facie case, balance of convenience and the irreparable loss and injury that would occasion to parties - no merit in case - appeals dismissed. para 14, 17 cases referred: maharwal khewaji trust (regd.) faridkot vs. baldev dass - air 2005 sc 104 smt.lalithakshi annadanagouda vs. sadashivappa basappa patil and another - air 1984 kar 74 lakshimarasimhiah and others vs. yallakki gowda - air 1965 mysore 310 (vol. 52, c.81) m/s.patel enterprises vs. m.p.ahuja - ilr 1992 kar 3772. ramjas foundation and another vs. union of indiaand others - cdj 2010 sc 1030 (these mfas filed u/o 43, rule 1(r) of cpc, against the order dated:4.4.2015 passed on ia no.1 in o.s.no.463/2015 on the file of the 14th additional city civil judge, bengaluru, rejecting ia no.1 filed u/o 39, rule1 and 2 of cpc.) 1. appellant herein is the plaintiff in o.s.no.463/2015. the said suit is filed by him seeking the relief of declaration that he is the absolute owner of 'b' schedule property. he has also sought for declaration that the sale deeds dated 29.07.1992, 04.08.1992, 27.08.1994, 29.08.1994, 08.09.1994, 28.02.1995, 22.04.1995, 17.04.1995, 11.12.1995, 09.12.1995 and five other sale deeds executed during the year 2010 were not binding on the plaintiff. plaintiff has also sought for permanent 5injunction to restrain defendant no.3/respondent no.3 herein from putting up illegal construction over b schedule property. 2. two applications were filed in i.a.nos.1 and 2 by the plaintiff. i.a.no.1 was filed to restrain defendant no.3 from putting up any illegal construction over suit schedule b property and i.a.no.2 was filed to restrain by way of temporary injunction defendant no.3 from alienating or encumbering suit schedule b property in favour of any third parties. both the applications have been dismissed by order dated 04.04.2015 passed by the learned xiv additional city civil judge, bengaluru. aggrieved by the dismissal of these two applications, these two appeals are filed. as common question arises for consideration, both the appeals are heard together and are disposed of by this common judgment. 3. the case of the plaintiff is that he is the absolute owner in possession and enjoyment of the property bearing khaneshumari no.82, katha no.64, measuring east to 6west 120' and north to south 280' situated at ibblur village, begur hobli, bengaluru south taluk now included in the bbmp limits. according to the plaintiff, his mother smt.shantamma executed a gift deed in respect of suit schedule a property as per registered gift deed dated 22.09.2003; thereafter, plaintiff constructed acc sheet roofed house and fenced the property. plaintiff claimed to have obtained power supply to the a schedule property from kptcl and has been paying electricity charges. plaintiff has traced his title over the a schedule property to his grandfather. 4. earlier appellant had filed o.s.no.5357/2005 seeking a decree of permanent injunction against the very defendant no.3 along with others to restrain them from interfering with peaceful possession of the suit a schedule property. the trial court dismissed the said suit on 17.08.2010. rfa.no.2055/2010 was filed before this court. the said appeal was also dismissed on 02.01.2015 observing that plaintiff was at liberty to plead and prove 7any other relief which he might be entitled to seek in the suit as contemplated by him. 5. it is the contention of the plaintiff that in the rfa, respondents therein were restrained by an interim order from alienating the suit a schedule property. it is urged that b schedule property is part of a schedule property lying to the north measuring east to west 120' and north to south 160'. it is also alleged that it is in this portion of the property (b schedule), defendant no.3 claims to have purchased different portions under various sale deeds to an extent of 26750 sq. ft. plaintiff alleges that the predecessors-in-title of defendant no.3 themselves did not have any title and therefore, defendant no.3 cannot claim any right, title or interest over b schedule property. 6. defendant no.3 has resisted the suit and also the two applications filed. plaint averments have been denied. it is urged that the suit itself was not maintainable as it was hit by the provisions of order ii rule 2 in view of institution and dismissal of earlier suit o.s.no.5357/2005 8and by the principles of res judicata. it is also urged that the suit was barred by time as sale deeds of the year 1992 were being challenged by instituting the present suit. it is also urged that the suit was not maintainable as the plaintiff had not sought for consequential relief of possession. defendant has urged that property bearing house list no.58/76 measuring 132' x 64' originally belonged to one smt.munithimmakka. she sold the same in favour of a.m.kumar vide sale deed dated 01.06.1992. the said a.m.kumar in turn sold it to defendant no.2 pandurangaiah on 04.01.1995; revenue records were mutated in his name and thereafter, panduranagaiah was in possession. similarly, original owner munithimmakka sold another property bearing no.58b/76b in favour of krishna murthy during the year 1992, who in turn sold it to defendant no.5 - sri j.s.suresh during the year 1995 and thereafter, it is j.s.suresh was in possession of the property and the revenue records are mutated in his name. similar assertions are made in respect of purchases made by defendant no.13 and defendant no.10.9 7. it is urged that after the other defendants purchased different bits of land, defendant no.3 with a view to exploit the same purchased all the portions on 11.11.2010 and on subsequent dates from other defendants under registered sale deeds for valuable consideration. pursuant to the purchase made by him, name of defendant no.3 was mutated in the revenue records. bbmp has effected khata in favour of defendant no.3. he applied to bbmp for consolidation of kathas and for assigning a single khatha number, whereupon by order dated 08.08.2011 consolidation of the khatha was made assigning new khatha no.834/316/75/96/226 declaring the total measurement of the property as 26750 sq. ft. defendant no.3 claims to have applied for permission to put up a multistoried residential apartment and obtained a sanctioned plan on 04.09.2013. it is urged that defendant no.3 has started construction during the year 2013 and the construction was at the completion stage when the written statement was filed. it is also urged that defendant no.3 has spent huge amount by availing loan from various 10financial institutions. the claim and right asserted by the plaintiff have been denied asserting absolute right of defendant no.3 over the suit property. 8. the trial court has come to the conclusion that plaintiff has failed to make out a prima facie case; balance of convenience did not lie in his favour, it has, therefore, held that i.as.1 and 2 deserved to be rejected. in the course of its order, the trial court has found that defendant no.3 has obtained khatha in respect of a and b schedule property and has been paying taxes apart from possessing permission to put up construction, whereas the plaintiff was relying upon revenue documents the authenticity of which were disputed by defendant no.3 and the said revenue documents did not create any title in respect of suit schedule properties, therefore, there was no prima facie case made out by the plaintiff in respect of both a and b schedule properties. 9. the trial court has further adverted to the fact that admittedly defendant no.3 has constructed residential 11flats investing huge amount and therefore, balance of convenience was in favour of defendant no.3. it has also held that if temporary injunction was granted restraining further construction and alienation, more hardship would be caused to defendant no.3 than the plaintiff. at any rate, undertaking given by defendant no.3 that if the suit were to be decreed, defendant no.3 will not claim any equity has been placed on record. 10. learned senior counsel appearing for the plaintiff sri jayakumar s.patil contends that mere dismissal of the suit filed for injunction in o.s.no.5357/2005, particularly when rfa was disposed of with an observation that the plaintiff had liberty to file suit to establish his other rights cannot be made basis for rejection of the application for temporary injunction to restrain defendant no.3 from alienating or encumbering the suit properties. it is urged by him that a comprehensive suit for declaration has been filed to establish right, title and interest of the plaintiff over the property and prima facie case has been made out by producing the revenue records which stood in the name of 12the predecessor of the plaintiff and the trial court was not justified in observing that the authenticity of the said document were doubtful because the person who had put his signature as official incharge was not working as such in the revenue department. he urges that it was a matter of trial and the court below ought not to have pronounced on the authenticity of the document at this stage. it is his submission that at least a direction may be issued directing defendant no.3 to incorporate a condition in the alienation to be made by him of the flats constructed in the suit property regarding pendency of the suit stating that the property was being sold subject to the result of the suit. he has placed reliance on the judgment of the apex court in the case of maharwal khewaji trust (regd.) faridkot vs. baldev dass - air 2005 sc 104. he has also pointed out that during the pendency of rfa no.2055/2010, this court directed the respondents not to alienate the suit property until further orders and construction to be put up shall be subject to the outcome of the appeal. 13 11. learned counsel appearing for the respondent no.3/defendant no.3 sri prasanna kumar has taken me through the pleadings and the judgment under challenge. he has urged that the suit is not maintainable as it was hit by order ii rule 2 cpc and was also barred by limitation. taking me through the findings recorded in the previous suit filed by the very plaintiff in o.s.no.5357/2005 disposed of on 17.08.2010, it is contended by him that plaintiff has failed to establish the identity and location of his property. it is urged by him that as the plaintiff was not found to be in possession of the suit property, unless prayer for possession of the property is made, he was not entitled for the decree. he supports the findings recorded by the court below stating that the revenue record signed by one s.v.sridhar, village accountant was prima facie not an authentic document as the said sridhar worked as village accountant from 15.01.1993 to 14.06.1995 and could not have signed the document pertaining to the period from 1989 to 1991. it is also pointed out by him that admittedly the suit schedule properties were not 14family properties and the said fact has been born out from the cross-examination in o.s.no.5357/2005. 12. it is also urged by him that defendant no.3 has put up construction by incurring huge financial obligations and liability and had so far spent more than rupees 20 crores and therefore, he cannot keep the property idle for decades pending disposal of the suit. hence, he submits that discretion exercised by the court below in rejecting the applications is proper and justified and does not warrant interference by this court in exercise of appellate jurisdiction. he has placed reliance on the judgment in the case of lakshimarasimhiah and others vs. yallakki gowda - air 1965 mysore 310 (vol. 52, c.81) to contend that grant or refusal of injunction is a matter resting in the sound discretion with the trial court and such injunction will not be granted if it operates oppressively or inequitably. reliance is also placed on the judgment in the case of smt.lalithakshi annadanagouda vs. sadashivappa basappa patil and another - air 1984 kar 74 to contend that the first appellate court will have no 15jurisdiction to interfere with the order passed by the trial court simply because it can reasonably possible to take another view on the facts of the case. urging that prima facie case includes nature of the suit and its maintainability and therefore, when the maintainability itself is doubtful, temporary injunction could not be granted, he has placed reliance in the case of m/s.patel enterprises vs. m.p.ahuja - ilr 1992 kar 3772. reliance is also placed on the judgment of the apex court in the case of ramjas foundation and another vs. union of indiaand others - cdj 2010 sc 1030 to urge that if the plaintiff does not come to the court with clean hands, he is not entitled to the benefit of any equitable relief of temporary injunction. an unreported judgment in mfa.no.8181/2014 c/w. mfa.no.7845/2014 disposed of on 16.12.2014 is also relied upon. 13. upon hearing the learned counsel for both parties and on careful perusal of the entire materials on record, i find that plaintiff has once failed in the suit filed in o.s.no.5357/2005 in securing the decree of permanent 16injunction. the said suit was instituted in the year 2005. he has litigated till 2015 and on 02.01.2015, rfa filed by him in rfa no.2055/2010 has been disposed of observing that the plaintiff was at liberty to plead and prove his entitlement to other reliefs in the suit to be instituted by him as contemplated by him. possession of the suit property being defendant no.3 has been reiterated by this court while dismissing the appeal. admittedly, defendant no.3 has incurred huge expenditure and has put up construction of multistoried apartments securing sanctioned plan from the competent authority. the property is recorded in the name of defendant no.3 and is assessed to tax from bbmp. 14. plaintiff has based his claim on the title which he traces to his ancestors and on the revenue records. the court below has prima facie found that authenticity of the revenue records were doubtful and at any rate, the revenue records could not establish title of the plaintiff to the property. respective stand of the parties and the documents relied upon by them have been taken note by 17the court below in recording a finding that plaintiff failed to make out a prima facie case. the court below has also kept in mind the balance of convenience particularly because defendant no.3, over the long period of time, has been putting up construction by investing huge sum of money. 15. as rightly contended by the counsel for respondent no.3, if any restraint order is passed, at this stage, directing property to be maintained in status-quo, the huge investment made by the 3rd defendant would be rendered idle causing recurring and irreparable loss and injury to the interest of the 3rd defendant. i find that if the plaintiff succeeds, he is protected by the principle of lis pendense under section 52 of the transfer of property act. the purchaser in such circumstances will purchase the property at their risk subject to the result of the litigation. defendant no.3 who disposes of the property will also be governed by the said principle of lis pendense. 18 16. the decision on which the counsel for the appellant has placed reliance will have no application to the facts of the present case. the principles laid down in the judgments on which learned counsel for the 3rd defendant has placed reliance are well recognized principles which will certainly come to the aid of defendant no.3 17. hence, in the facts and circumstances, as the trial court has exercised its discretion in accordance with law keeping in mind the prima facie case, balance of convenience and the irreparable loss and injury that would occasion to the parties, i do not find any merit in this case. these appeals are, therefore, dismissed.