{"id":188906,"date":"2007-10-12T00:00:00","date_gmt":"2007-10-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shridevi-anr-vs-muralidhar-anr-on-12-october-2007"},"modified":"2017-10-10T16:27:03","modified_gmt":"2017-10-10T10:57:03","slug":"shridevi-anr-vs-muralidhar-anr-on-12-october-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shridevi-anr-vs-muralidhar-anr-on-12-october-2007","title":{"rendered":"Shridevi & Anr vs Muralidhar & Anr on 12 October, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Shridevi & Anr vs Muralidhar & Anr on 12 October, 2007<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: S.B. Sinha, Harjit Singh Bedi<\/div>\n
           CASE NO.:\nAppeal (civil)  4886 of 2007\n\nPETITIONER:\nShridevi & Anr\n\nRESPONDENT:\nMuralidhar & Anr\n\nDATE OF JUDGMENT: 12\/10\/2007\n\nBENCH:\nS.B. Sinha & Harjit Singh Bedi\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n[Arising out of  SLP (Civil) No. 4931 of 2007]
\nS.B. SINHA, J :\n<\/p>\n
1. \tLeave granted.\n<\/p>\n
2.\tThis appeal is directed against a judgment and order dated 6.11.2006
\npassed by a learned Single Judge of the Karnataka High Court in MFA Nos.
\n8773 of 2006 and 8939 of 2006.\n<\/p>\n
3. \tContesting defendant in the suit is Appellant No. 1 before us.
\nPrincipally, the dispute relates to site No. 433 measuring 30 ft. x 50 ft.
\nappurtenant to Survey No. 15\/1 situate in Kattriguppa Village, Hobli
\nUttarahallai in the District of Bangalore.  By a notification dated 28.10.1971,
\nBangalore Development Authority (The Authority) in exercise of its power
\nunder Section 18 of the Bangalore Development Authority Act purported to
\nhave acquired Survey No. 15\/1.\n<\/p>\n
4.\tThe Authority allegedly allotted the said site to Respondent No. 2
\nLeela Prabhakar Rao on 1.11.1979.  Plaintiff- Respondent No. 1 is said to be
\nin possession of site Nos. 434 and 435.  He has raised constructions
\nthereupon.  A notice was issued by the Authority directing demolition of
\nsome alleged unauthorized construction made by him.  He filed a writ
\npetition thereagainst which was marked as W.P. No. 32227 of 1992.  The
\nsaid writ petition, however, in absence of the counsel of Respondent No. 1,
\nwas dismissed.\n<\/p>\n
5. \tRespondent No. 1 later on sought permission to raise constructions in
\nSite Nos. 434 and 435 wherefor he expressed his readiness and willingness
\nto pay the requisite charges.\n<\/p>\n
 \tA deed of sale was executed in favour of Respondent No. 2 on
\n23.08.1996 and a possession certificate was issued in her favour in respect of
\nthe said site No. 433 on 5.03.1997.  A deed of sale was registered in the
\nname of Smt. Vishala Raj for Site No. 432 on 15.09.1997 and possession
\ncertificate was issued on 22.10.1997.  Appellant No. 1 herein purchased Site
\nNos. 433 and 432 from Respondent No. 2 and Smt. Vishala Raj by
\nregistered deeds of sale dated 11.06.2004 and 8.06.2006 respectively.
\nAllegedly, her name was also mutated in the record of rights.  A building
\nplan was submitted by her which was sanctioned for construction of a
\nresidential house on the said plots.\n<\/p>\n
6. \tAllegedly, Respondent No. 1 again on 7.07.2006 sought for
\nreconveyance of Site Nos. 434 and 435.  As he apprehended that Appellant
\nNo. 1 herein would raise constructions on Site No. 433, he filed a suit
\nagainst Appellant Nos. 1 and 2, Respondent No. 2 and the Authority in the
\nCourt of the City Civil Judge at Bangalore inter alia praying for the
\nfollowing reliefs:\n<\/p>\n
(i)\tdirecting them not to use the Borewell put up in site No. 433 for
\nany purpose for all time to come.\n<\/p>\n
(ii)\tDirecting them not to put up any compound wall or construction in
\nsite No. 433 and also not change the nature of site in any manner.\n<\/p>\n
7. \tPlaintiff- Respondent No. 1 inter alia averred that one Kapinaya was
\nthe original owner of the property.  He transferred the said property in
\nfavour of one Laxmi Devamma.  Laxmi Devamma transferred her right, title
\nand interest in favour of A.R. Upadhyay, father of plaintiff  Respondent
\nNo. 1 by a registered deed of sale dated 12.06.1960.  The said purchased
\nland consisted of three sites admeasuring 90 ft. x 50 ft. pertaining to Survey
\nNo. 15\/1.  A No Encumberance Certificate was also issued in respect of the
\nthree sites, viz., Site Nos. 433, 434 and 435 for the period 01.04.1960 and
\n28.03.1999.  Survey No. 15\/1 in the revenue records was shown to be
\nbelonging to the following persons:<\/p>\n
(i)\tNagamma w\/o Javarayappa\t\t\t– \t2 Acre 9 Are\n<\/p>\n
(ii)\tVenkata Reddy and B.S. Subba Rao\t\t–\t1 Acre 16 Are\n<\/p>\n
(iii)\tKapinayya s\/o Nanjundaiah\t\t\t–\t1 Acre 4 Are\n<\/p>\n
(iv)\tA.R. Upadhyaya \t\t\t\t\t–\t90 ft. x 50 ft.\n<\/p>\n
8. \tAfter the death of the father of Respondent No. 1, his name was
\nentered into the record of rights as owner thereof by an order dated
\n25.06.1974.\n<\/p>\n
9. \tThe Authority sought to acquire 2 Acres 20 Gunthas of land by a
\nnotification dated 28.10.1971 which was said to be belonging to Venkata
\nReddy and B.S. Subba Rao.  In the said notification itself, the northern
\nboundary was shown as part of Survey No. 15\/1.  An award was made
\ntherein only in respect of 2 Acres 20 Gunthas of land wherein the names of
\nthe awardees were shown as Venkata Reddy and B.S. Subba Rao.  In the
\nsaid award again, the northern boundary was shown as part of Survey No.
\n15\/1.\n<\/p>\n
10. \tContention of the plaintiff is that the aforementioned Site Nos. 433,
\n434 and 435 were not the subject matter of the acquisition proceedings.\n<\/p>\n
11.\tAn application for grant of interim injunction was filed by the
\nplaintiff- Respondent No. 1 in the said suit.  Allegedly at the time of filing of
\nsuit, Site No. 433 was vacant.  An order of status quo was granted by the
\nTrial Court by an order dated 13.07.2006 which was extended on
\n17.07.2006.  By an order dated 16.08.2006, the Trial Court rejected the
\napplication for grant of temporary injunction in the said suit.  Aggrieved
\nthereby, plaintiff  Respondent No. 1 filed MFA Nos. 8777 and 8939 of
\n2006 before the Karnataka High Court.\n<\/p>\n
12. \tThe High Court, however, opining that a triable case has been made
\nout by the plaintiff directed maintenance of status quo.  A Special Leave
\nPetition was filed on 23.02.2007 before this Court.  By an order dated
\n8.03.2007, a Bench of this Court while issuing notice on the application for
\ncondonation of delay as also the special leave petition directed:\n<\/p>\n
Issue notice on the application for condonation of delay
\nas well as on the Special Leave Petition returnable within
\nfour weeks.\n<\/p>\n
\tIt is stated by Counsel for the petitioners that
\nsubstantial construction has been raised on the site in
\nquestion after obtaining necessary permission of the
\nBangalore Development Authority (B.D.A.).  The
\nimpugned order of the High Court is stayed but any
\nconstruction raised on the site in question will be subject
\nto the result of the appeal and at the risk and cost of the
\npetitioners.<\/p>\n
13.\tBefore embarking upon the rival contentions of the parties, we may
\nnotice certain disturbing features.\n<\/p>\n
 \tAlthough this Court, on the basis of the representation made by
\nAppellant No. 1 herein, permitted them to carry on the constructions on Site
\nNo. 433 at their own risk, no process fee was deposited.  Appellant herein
\nobtained certified copy of the said order from the Supreme Court Registry
\nand commenced construction thereupon in a post haste manner.  Even a copy
\nof the paperbook was not handed over to the learned Advocate for the
\nrespondents.  The learned counsel for Respondent No. 1 asked the Advocate
\n On  Record of the appellant to supply a copy of the paperbook which was
\nrefused.  A letter of request thereafter was served on the Advocate-On-
\nRecord on 4.04.2007.  The matter was then mentioned before this Court
\nwhereupon by an order dated 05.04.2007, this Court directed the learned
\nAdvocate on Record for the appellant to supply the copies of the paperbook
\nto the learned Advocate appearing for the respondents.  Despite the same,
\nallegedly only first volume of the paperbook was served upon the learned
\nAdvocate for Respondent No. 1 and the second volume, which had already
\nbeen filed, was not served.\n<\/p>\n
14.\tProcesses were filed only on 13.04.2007. An application for
\ncondonation of delay therefor was filed.  The matter came up before this
\nCourt on 23.04.2007 and by an order dated 27.04.2007 this Court vacated
\nthe interim order dated 08.03.2007, whereupon the Advocate-On-Record
\nwas changed.  A personal affidavit was filed by one Advocate Kashi
\nVishweshwar.  An application was also filed for recalling the order dated
\n27.04.2007 and for restoration of the  order dated 08.03.2007.  This Court on
\n17.05.2007 recalled the said order dated 27.04.2007 and the interim order
\ndated 8.03.2007 was restored.  Liberty, however, was granted to the
\nrespondents for moving before the Vacation Bench in view of the extreme
\nurgency.\n<\/p>\n
15.\tAlthough the High court directed  expeditious disposal of the suit by
\nthe Trial Court, the defendant  respondent (vendor of the appellant) filed an
\napplication for deferring the hearing of the suit inter alia on the premise that
\nthe matter is pending before this Court.  A Vacation Bench of this Court
\nupon hearing the counsel for the parties by an order dated 21.06.2007
\ndirected maintenance of status quo and the order dated 8.03.2007 permitting
\nconstruction was recalled.  It was thereafter only a memo was filed before
\nthe Trial Court for withdrawal of their application dated 12.06.2007.\n<\/p>\n
16. \tMs. Indu Malhotra, learned senior counsel appearing on behalf of the
\nappellants, would submit that the High Court committed a serious error in
\nreversing a well-considered judgment of the Trial Judge.  It was contended
\nthat the respondents, even as far back in 1992, having not claimed any
\nownership in respect of Site No. 433, were not entitled to an order of
\ninjunction.  It was pointed out that the learned Trial Judge had found as of
\nfact that the plaintiff-respondent had failed to show his right, title and
\ninterest in respect of Site No. 433.\n<\/p>\n
17. \tAccording to the learned counsel, as about 80% of the construction is
\nalready over, this Court should allow the appellant to complete the same as
\notherwise she will suffer irreparable injury.\n<\/p>\n
18. \tMr. Ravindra Keshavrao Adsure, learned counsel appearing on behalf
\nof the respondent No. 1, on the other hand, would submit that it is incorrect
\nto contend that the entire Survey No. 15\/1 has been acquired, which would
\nbe evident from the fact that the name of the plaintiffs father was shown as
\nowner of 90 ft. x 50 ft. of land appurtening to the said Survey No. 15\/1.  It
\nwould also appear from the records that the land of Venkata Reddy and B.S.
\nSubba Rao had only been acquired.\n<\/p>\n
19. \tThe Authority appears to have been impleaded as a party to the suit.\n<\/p>\n
20.\tIt is stated that the plaintiff had filed an interlocutory application
\ncalling upon the Authority to produce the documents in original and the
\nsame had been allowed by an order dated 23.02.2007.\n<\/p>\n
21.\tThe principal question which is necessary to be determined in the suit
\nwould be as to whether Site No. 432 was the subject matter of any Land
\nAcquisition proceeding or not.  Prima facie, it does not appear that the said
\nplot was acquired.  Had entire Survey No. 15\/1 been the subject matter of
\nLand Acquisition proceeding, the portion of the land belonging to the
\nplaintiff- respondent would have also been acquired.  Their names also
\nwould have found place in the notification.  Possession would have been
\ntaken from them and an award would have been made in their favour.  The
\nvery fact that the northern boundary of the land sought to be acquired has
\nbeen shown as Survey No. 15\/1, prima facie,  it appears that the entire
\nSurvey No. 15\/1 had not been the subject matter of acquisition.\n<\/p>\n
22. \tIn that view of the matter the High Court was right in opining that an
\narguable case has been made out.  While considering an application for
\ninjunction, existence of a prima facie case, balance of convenience of
\nparties, irreparable injury were required to be considered by the Civil Court.
\nGrant of a relief in regard to  the nature and extent thereof will depend upon
\nthe facts and circumstances of each case.  [See M. Gurudas & Ors. v.
\nRasaranjan & Ors.,<\/a> reported in 2006 AIR SCW 4773]<\/p>\n
23. \tThis Court, however, is not oblivious of the fact that ordinarily a court
\nof appeal does not interfere with the discretionary jurisdiction exercised by
\nthe learned Trial Judge.  However, in this case the learned Trial Judge while
\npassing the order dated 16.08.2006 failed to consider the relevant question,
\nviz., as to whether the Authority had acquired Site No. 432 or not.  That was
\nthe principal question on the basis whereof  the learned Trial Judge ought to
\nhave proceeded with the matter.  It did not do so; as a result whereof it
\nmisdirected itself.  Title claimed by the appellants herein is said to have been
\nderived from the Authority.  If Site No. 433 was not the subject matter of
\nacquisition, the question of execution of any deed of sale in favour of
\nRespondent No. 2 herein by the Authority did not or could not arise.
\nConsequently, Respondent No. 2 could not have transferred her right, title
\nand interest in favour of the appellant herein.\n<\/p>\n
24. \tOmission on the part of the learned Trial Judge to consider the
\nrespective cases of the parties, in this behalf, in our opinion, deserved
\ninterference by the First Appellate Court.  If that be the legal position,
\nwhether the plaintiff  Respondent No. 1 herein had prayed for raising any
\nconstruction on Site No. 433 or not may not strictly arise for consideration.\n<\/p>\n
25. \tWe may furthermore notice that although in the application for
\npermission to raise construction, such a prayer had not been made, which
\naccording to Mr. Adsure, was an inadvertent error.\n<\/p>\n
26.\tThe fact remains that the ownership of Site No. 433 whether vested in
\nthe plaintiff  Respondent No. 1 or Venkata Reddy and B.S. Subba Rao is
\nthe core question which would fall for determination of the learned Trial
\nJudge.\n<\/p>\n
27.\tOrdinarily this Court having regard to the fact that the appellant has
\nraised substantial constructions would have allowed her to complete the
\nsame but the fact remains that she did not question the said order before this
\nCourt for a long time.  The application for grant of special leave was barred
\nby limitation.  In a situation of this nature, ordinarily, the aggrieved party is
\nexpected to approach this Court without any loss of  time.  We have noticed
\nhereinbefore that in the meanwhile the plaintiff  Respondent No. 1 had
\nsought for production of certain original documents from the Authority
\nwhich has been allowed.\n<\/p>\n
28. \tThe conduct of the appellant must be deprecated.  Upon obtaining an
\ninterim order from this court, she with a view to complete the construction
\nso as to make the situation irretrievable, not only did not file processes;
\neven without any rhyme or reason a set of complete paperbooks had not
\nbeen served on the Advocate for the plaintiff  respondent.  Although ad
\ninterim order passed by this Court had nothing to do with the hearing of the
\nsuit, which in terms of the direction issued by the High Court deserved
\nexpeditious disposal; an application was filed through Respondent No. 2
\nherein for deferring the hearing of the suit on the premise that the matter is
\npending before this Court.  Evidently, such an application was filed at the
\nbehest of the appellant.\n<\/p>\n
29.\tIt is stated at the Bar that Mr. Nandkishore J., Advocate appeared
\nbefore this Court on 8.03.2007 on behalf of the appellant but the same
\nlearned Advocate had appeared for Respondent No. 2 before the court
\nbelow.\n<\/p>\n
30. \tThe very fact that the appellant and the said respondent have a
\ncommon Advocate also goes a long way to show that the said application
\nmust have been filed at the instance of the appellants themselves particularly
\nhaving regard to the fact that Respondent No. 2 had transferred her right title
\nand interest in favour of the appellant herein.\n<\/p>\n
31. \tFurthermore, no construction could be raised in view of the order of a
\nDivision bench of this Court dated 21.06.2007.  In that view of the matter, in
\nour opinion, interest of justice would be subserved if the said order is made
\nabsolute.  We would, however, direct the plaintiff  Respondent No. 1 to
\nfurnish security for a sum of Rs. 2,00,000\/- (Rupees two lakhs only) within
\nfour weeks from date so that in the event, the suit is dismissed and in the
\nproceedings the appellants prove that she has suffered any damages by
\nreason of not being able to raise any construction from the date till disposal
\nof the suit, they may be suitably compensated therefor.\n<\/p>\n
32. \tThe appeal is dismissed subject to the aforementioned directions with
\ncosts.  Counsels fee assessed at Rs. 25,000\/- (Rupees twenty five only).<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Shridevi & Anr vs Muralidhar & Anr on 12 October, 2007 Author: S.B. Sinha Bench: S.B. Sinha, Harjit Singh Bedi CASE NO.: Appeal (civil) 4886 of 2007 PETITIONER: Shridevi & Anr RESPONDENT: Muralidhar & Anr DATE OF JUDGMENT: 12\/10\/2007 BENCH: S.B. Sinha & Harjit Singh Bedi JUDGMENT: J U D G […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-188906","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nShridevi & Anr vs Muralidhar & Anr on 12 October, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shridevi-anr-vs-muralidhar-anr-on-12-october-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shridevi & Anr vs Muralidhar & Anr on 12 October, 2007 - 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