IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THES THE 19% DAY OF MARCH 2009
BEFORE
THE HoN'aLE MR. JUSTICE C.R. !<UE'!lARA5~V:\*;'AF'li:A7:{:'.':.o:E"
E'/l.F.A. NO. 11165/200-8"'('CPlQ)7_; A
BETWEEN: A A
Smt. Jabeen Taj
W/o S.H. Ashraf
Ageo 36 years
No.1815, III Block
10"' Cross, Hllal Nagar
I-*l.B.R. Layout
Bangalore ~;"5A5U' Exile A
' Appellant
(By Sri: ._SeshV"a gnf'r*Vi:_ Advocate)
Ail;
ski;mbarballaayShaA%:rf
S/o Jaanaab Abd"u_lIa.'.a'V-..-V"
61. years
l\lo,_49, T'h--.imr_halah Road
rljeayyngyyalore -- 5360 051
HxRespondent
Sri: G.S. Shrlkanteswaran, Advocate)
U
This MFA is filed under Order 43 rule 1(r) off”CgPC,
against the Order dated 12/11/2008 passed on {A E’\io;v.1″j–a’rid
2 in O.S.No. 6075/2008 on the file of >< Adlaiiitiiofmgirll511;!'~-
Civil Judge, Bangalore, CCH-40, allowing IA i\lo';'1-rfirleidiiiundéfr
Order 39 Rule 1 & 2 crc for 7.1. and::di'sjrni.ssi_ng.:
filed under Order 39 Rule 4 of CPC ford/Aa'c_ating:_i:_he*order"of'–..g
Temporary injunction.
This Miscellaneous Fsrs’t._ onulior Hearing
this day, the Court delivered the ‘foii:lowgi~n:ig
T in
This filed under Order–43
Rule W 1(r) vicivil against the order dated
12.11.2008. g%pais’sea»ior17 Nos.1 and 2 in o.s.
of 39*” Add!. City Civil 3udge,
BangiaiVVor’erC:CkiVf4igyyrallowlng LA. No.1 filed under Order–39
i”vv:.Ai”Fi’uies 1″”«..anr;i” of CPC for Temporary Injunction and
ILA: No.2 filed under Order~39 Rule~4 of CPC for
order of Temporary Injunction,
£2′
property, pursuant to a registered GPA conferred uponhim
by the original owner of the Band comprised in 2
of Kachakaranahaily. After obtaining the possess:i.on’_t.’oii”
scheduie property, he constructed
same during the year 1984 and_ieased”*t_he sanfie one’;
Alla Baksh.
(4.2) Plaintiff has timer.ia.is:a[:e.a..[gthat originaiiy
Sy.l\io.14O of Kachari<..:a'nahiaEEyi 4:acres 27 guntas
stood in the narin4es,."ol5"iVl/_s: S*hf.aAn'b__h:ogv–.gKaiyanasundaram and
R.V. Nanjuridaiah.Vivivefj-iri'is:'p-ri:ri~ci'pai as per the GPA dated
3.3.1983 and uthe afo'r'esa_id~.'§'txtent of land was notified for
a:_<:(,t~Liyi_sitiQ_r*.<eCuted""%in favour by one Srnt. Lakshmamma with
_r_r'.jifVesp'eCt to Site No.158 of HER layout 1" stage, 15'
handed over the katha certificate, extract,
"rli'¢:'en_s_er§ and the sale deed executed by BDA in favour of
2/
Lakshmamrna with respect to the aforesaid site. He
contended that the schedule property is
allotted to the defendant's vendor and she
upon the same. Though he
doing any such act by appraising' her
the declaration suit filed by h'i:n'i.V'.v:again1'st– 'l_VV:B_'t3A':]in o.s.
No.7546/2002, the defend*a..n't_'dé.i:d to request
made by him to stoizvtvbe c.o'i"istt't:cti.o2»n_it-lence he was
left with no indulgence of
the Court "for.VVi_n3unctive relief against
the defendant.'* facie case and further
considering of construction of the
the balance of convenience also
lieskin the injunctive relief. If for any
iifiieasonlthe in.te'ri'§{:ni'; relief sought for him were to be refused
'4–l«l'.jby.__'t-he CoLrt* and in the event the defendant were to
any structure, not only the suit filed by him would
infructuous but he will be put into such irreparable
2/
loss and injury which cannot be compensated in terms of
money.
(5) The defendant has filed an
Order-39 Rule~4 of CPC. In support:vollVth’at.v appiiecatiqnV ,rtijé;
defendant has sworn to an affidaex/_it asun’d»er:
(6) He stated that he is the”‘a.:t:’5solutl.e’olfvnehaf ofytlhlellsuit 2
schedule property having .pu..ifcha”sed th_e’l”‘s.a’me ‘undler a sale
deed dated 16.2.2004 from The said
sale deed has beé’|’i;~_iil”egl::3te€’:ea .::ti§eiv–o’?fice of the Sub-
Registrar, The said Lakshmamma
acquired title utioxdthevls_ui’t.V”pr’operty on 3.9.2002 from the
beAfore—-~-executing the absolute sale deed in
favVo=ur’iofil.,a’-l{shfh..a’r3<jma, on 21.4.2002 Lakshmamma was
in"p_o%sses.s§oh'i:;of the property by issuing possession
"–2«2..certif»i.cAate. " the basis of the sale deed dated 162.2004,
A',42"-sneyrhasacquired absolute title to the property and she is in
"iiVayv§ti.l_.possession of the suit schedule property. She stated
W
that in the month of jiune 2008, the Local Authority
sanctioned the plan and issued licence
construction on the suit scheduie property. iii}?
she started to put up construction?ofii:.tiie"«__suit-iis'c,h.e'd'ui_e:'
property. Though the plaintiff has noé'i'.i_gi".t,
over the suit schedule property,'V'xh.Ve: .Vhas"'ajo:p'roal:c;hed the
Court for an order of obtained an
interim order at as if he has
got a right in property. On
the basis of.the""ii.n'te*1::-;i:rgu interfering with
her origoinlg' that the Court has
granted an orde.rio.f she should not proceed
stated that if the interim order
by the Court below is not vacated,
:7jf«..then to hardship and injustice. On the
-i_.l’_jC»-O.ntr.ary, i’f.,V__Athe interim order of injunction granted is
be vacated, then no hardship or injustice wouid
‘Vcb’eica_L.ased to the case of the other side.
[L/’
(7) The sum and substance of the finding of they-Court
below is that plaintiff has filed a suit against
o.s. NO.7S46/2002 for the relief of declaration’-..:to~[declare
that he has perfected his title over the schgedL3ge’1
adverse possession. The sealed su.i_t”‘– is forfi
adjudication. Therefore he isv’vi4en:tit_iVed iiforjiiajn order of
Temporary Injunction.
(8) The lear;,..ett..;ci3un§gelgfor t’hAe”i’a_’p.p.eVlE’a’nt submitted as
under:
The purchased from one
Lakshrnammau . The “rS’ai4ci*«-._’:ivi;a’l<shmamma is the originai
aiiottee Qsftfze Vi:'Jo.14O/2 was an acquired land by
fiiaintiff has no concern over the property in
questioAr§.~,–.Vi' VV'lEéV§<'_eep;t"Vone GPA, he has no other document to
that owner of the property. The defendant —
got the original sale deed issued by the BDA,
'VffP_osses;sion Certificate issued by the BDA and the sale deed
V'riiV4j_"rie_itecuted by Lakshniamma is in favour of the appellant.
2/_
10
She is also having khatha certificate issued by theftocal
Authority. She has also got upto date tax
Appeliant has also obtained sanctioned
from the competent authorities to
the suit schedule property. T,he__.doc’ur.n’ents
the appellant clearly shows that owner of
the property in question. V l
(9) Learned counsel rVeAs.po’n’d’e:’it”submitted that
respondent hasygiot suit schedule
property. ItHishistfcont:e:nt.i:o’n.’_’vthathey is in possession of the
suit schedule’ ‘his contention that he is in
settled poisseessionthie property in question. He has filed
aieuyiiitiii o;s.y*l«..iyo.7si45/2002 to declare that he has
perfecte-dyyhis:’t_iv_t_l__e’T;W Way of adverse possession. The said
Kzsuit is pe’ndi”no’i5efore the Court below. Learned counsel
.1 respovndent relied on the decision of this Court in the
‘john 8. James .vs. BDA and another reported in ILR
lK”iiy~~i.2o£ioiKAR. 4134.
lb’
(10) I have carefully perused the decision citedl.Vbyi_”t_he
iearned counsei for the respondent. In my
ruling cited by the learned counsei for,.t.he resp’o”i’id_e.n’t’iisnot
applicable to the instant case.
(11) Normally white th3eVVVVVCourt
below has to examine facie case
and whether irreparable appellant
and balance of case, it is the
case of that he has purchased the
site in questioni”f.ro’rn?:oVnVe’..vLatinshmarnma, who is the originai
a_iiott_ee —– -«it is also undisputed fact that the
site”‘xi__n” acquired vide preliminary notification
:7s”~d’ated and the final notification dated 9.1.1985
_…’_favri«d”Bt)A h”ais__A’3passed an award on 9.3.1987 and possession
Twas drawn on 14.8.1987. These things have
“ibe:e~n…..icleariy stated in the affidavit of the plaintiff.
f””«.;T”herefore the trial Court has not examined these aspects as
{if
12
to who was the owner of the land in question at the time of
considering the application for grant of injunction,….__”Et,tis”‘th’e,.
contention of the learned counsel for the
respondent is in settied possession.
respondent, original owners ofthe landviiare
Kalyaraasundaram and R.V. Na4r’.V;”iV’u:1d’aia<'h'* iivfghe has
obtained GPA on _ of the
Transfer of Property'./Act, an act
by which a living in present or in
future, to persons, or to himself,
and one "persons and 'to transfer
property' is act. Such being the case,
V}l'i'th_Q'Ut saliedeied executed, GPA will not transfer
'.f"a.:yVo.ur of the GPA holder. He only acts on
Glfibehalf'0_f"lthe.'pr.incipal. The learned counsel for the
-4_i,i’.ji5i’iL’.p’e-lllant/defendant submitted that the award amount has
‘F.4:’=be–e:nV’._rec_eix/ed by the original owner. It is the contention of
‘the..r.es§ppndent/plaintiff that the BDA demolished the small
V
13
shed existed in the schedule property. But in__ the
averrnents of the plaintiff, it has been clearly statevd:’j««.t:E’:’a’t
the BDA has drawn a possession rnahazar
Such being the case, the contention-of’ the learnedj_cou..n,sel..g
for the respondent/plaintiff that
possession of the suit schedui’erig:.V””‘property_’ to’
accept. The trial Court hasoveir’l’o’o.E{‘ecl”i’this asipect of the
matter and it has not considered to who was
in possession of t”h’e;.s’uitgiscberdule Eventhough
the acquisition not§:r;_ir;a.tio’n i:s’sued§ Way back in the year
1978, the:”suit’fer’:l’a§i-»yer.s’e–possession was filed in 2002,
after neariy 24u”y.earsg.x’
In case, the trial Court has also not
relating to irreparable injury that is
V”v”:.caLised to”theigappellant/defendant. The appellant/defendant
.: the property from the originai aiiottee of the
tmhé year 2004 and ‘he has also arranged funds for
hatZfjucgonstvruction of the building in the suit schedule property.
22’
14
Therefore the baiance of convenience is in favour of the
defendant and she stiii suffers from more injury
(13) Even the acquisition notification hasy’::’aiso:’iioeehrir”
not challenged by the plaintiff. in the”s’ui–t,, ‘the it
been made a party. The piaintiffih__a:s_fV_no
property in question has been éi”ccj’uired ‘b.y_’th”e sway V
back in the year 1978. Tiler_efore”tga-ionjgi’~into accotint of all
aspects of the case and theVV_n*ia_te..r_iValVfs record, the
piaintiff has not :é:ny’_prirn’aj:Vfa.c’ive—case.
(14) Court in the matter of
injunction is”ratheri,_.circun3~~scri’bed. The éippeiiate Court
would befisiogw to V-.int’e’rfer’e i/with the exercise of discretion
a’iiNW0u’fi’d not be justified in interfering with the
exerc’ise~f’.__o.fl”d:i’scre.t’id’n under Appeal soiely on the ground
v7?1_tha.t if itis c.’–onsi”dered at the triai stage, it may have come
;”cio.ntrary conciusion. If the discretion has been
f/F,
15
exercised by the trial Court reasonably and in a judicial
manner, the fact that the appellate Court would havvehliltaiten
a different view may not justify interference
Court’s exercise of discretion. If it app,e_a_rs to’th=e7jap’pe’llVate4 “‘
Court that in exercising its discretion, trial
acted unreasonably or capriciously or ,hasVl’.iVgnor’edthe”‘
relevant facts, then it would xc-ert”a–in”ly__ be'”op.e.n’§ to the
appellate Court to interfere”‘wi_th exercise of
discretion.
(15) lens examine whether in
the instant case ithe’v._t«r’;i:a’l has acted reasonably or
not ? The “aspect ‘rellhatingf to acquisition of the land by the
and taking possession on 14.8.1987
has notibyeiefi:”‘g_x__a’nfil’ned by the trial Court. The defendant
Vlfluhash the property from one Lakshmamma who is
,j.=the”..forigi–nyal Hallottee. This aspect has also not been
by the trial Court. Even the balance of
V’Jj”~.convenience between the plaintiff and the defendant has
ex
16
not been property examined giving a finding to that effect.
The finding of the triai Court to the effect that
filed by the piaintiff for adverse posses.S_i,o_n..VVinf
7546/2002 is pending, the piaintiff
may riot be proper and it is not’ on the.sound.»’p’rin:;i.Vpie§s
iaw. The trial Court has un’reaf_S’©’navbEy and
capriciousiy. Therefore tVh’e.CTorAd’er2.passevd:’py the triai Court
is to be set aside and the”‘inj:unVc’t.iQ.n’ by the triai
Court deserves to he f V
(16) fv’_if’e’yv_..oyffi.:the;”‘~a_bo_veuHidiscussion, I pass the
foiiowing:
First Appeai is aiiowed.
2. Th’e._app!iVCa”t~i_vo_n’AV~f.:;fiied under Order-39 Ruies »» 1 and 2 of
cm: mio,s; i\io.A6O7S/_2O08 is rejected.
.1 appiioation fiied under Order~39 Ruie–4 of CPC in
‘_’_Q.S..V’F\3o’.6O7S/2008 is aiiowed.
6//g
3’3;
17
4. The interim order of injunctien granted by the triaEfC–.ourt
is vacated. ‘V
V e
Gss/–