1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN MISCELLANEOUS FIRST APPEAL NO.2450 OF 2024 C/W MISCELLANEOUS FIRST APPEAL NO.2449 OF 2024 IN MFA NO.2450/2024 BETWEEN: 1 . SRI. M. SHANKARAPPA S/O LATE MARIYALLAPPA, AGED ABOUT 63 YEARS, 2 . SRI. ASHWATHA S/O LATE MARIYALLAPPA, AGED ABOUT 56 YEARS, 3 . SRI. M. VIJAYA S/O LATE MARIYALLAPPA, AGED ABOUT 49 YEARS, 4 . SRI M. GAJENDRA S/O LATE MARIYALLAPPA, AGED ABOUT 46 YEARS, 5 . SMT. B. K. RATHNAMMA W/O LATE SRI. M. SRINIVAS, AGED ABOUT 51 YEARS, 6 . SMT. SWETHA D/O LATE SRI. M. SRINIVAS, 2 W/O SRI. MANJUNATHA, AGED ABOUT 29 YEARS, NO.1 TO 6 ARE ALL R/O NO 58/3, 5TH CROSS, YELLUKUNTE, BOMMANAHALLI POST, BENGALURU - 560 068. ...APPELLANTS (BY SRI. G. S. VENKAT SUBBA RAO., ADVOCATE) AND: 1 . SMT. NAGAMMA W/O LATE MUNIYALLAPPA, AGED ABOUT 60 YEARS, 2 . SRI. SOMESH S/O LATE MUNIYALLAPPA, AGED ABOUT 47 YEARS, 3 . SRI. RAKSHITH S S/O SRI SOMESH, AGED ABOUT 22 YEARS, 4 . SRI. MANJUNATH S S/O SRI SOMESH, AGED ABOUT 20 YEARS, 5 . SMT. BHARATHAMMA D/O LATE MUNIYALLAPPA, AGED ABOUT 46 YEARS, 6 . SRI YALLAPPA S/O LATE MUNIYALLAPPA, AGED ABOUT 35 YEARS, 7 . KUMARI CHETHANA D/O SRI. YALLAPPA, AGED ABOUT 1 YEARS, 3 REPRESENTED BY HER NATURAL GUARDIAN FATHER SRI. YALLAPPA 8 . SRI NAVEEN KUMAR @ NANDHISH M S/O LATE MUNIYALLAPPA, AGED ABOUT 35 YEARS, 9 . SMT. MANJULA D/O LATE MUNIYALLAPPA, AGED ABOUT 32 YEARS, NO.1 TO 9 ALL ARE RESIDING AT NO. E80/1, 6TH CROSS, 1ST MAIN NEAR SAMUDAYA BHAVAN, YELLUKUNTE, BENGALURU - 560 068. 10 . SRI. M. RAVICHANDRA S/O SRI M MUNIYALLAPPA, AGED ABOUT 48 YEARS, R/AT NO.97, VENKATESHWARA TEMPLE ROAD, MANGAMMANAPALYA BOMMANAHALLI, BENGALURU - 560 068. 11 . SRI. DILIP R. S/O SRI. T. RAJAPA, AGED ABOUT 34 YEARS, RESIDING T NO 09, ISIRI NILAYA, D. R. LAKE VIEW, ROOPENA AGRAHARA, BENGALURU - 560 068. …RESPONDENTS (BY SRI. V.RAJANNA, ADVOCATE FOR C/R1 TO R5, R8, R9; SRI. R.V.NAIK, ADVOCATE FOR R6, R10, AND R11, R7, IS MINOR REP. BY R-6) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(R) OF CPC, PRAYING TO CALL FOR RECORDS IN OS NO. 600/2024 FROM THE COURT OF IX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU B) SET ASIDE THE 4 IMPUGNED ORDER DATED 06.04.2024 PASSED ON I.A.NO.I FILED UNDER ORDER XXXIX RULE 1 AND 2 OF CPC BY THE IX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN OS NO.600/2024. IN MFA NO.2449 OF 2024: BETWEEN: 1 . SRI. M. SHANKARAPPA S/O LATE MARIYALLAPPA, AGED ABOUT 63 YEARS, 2 . SRI ASHWATHA S/O LATE MARIYALLAPPA, AGED ABOUT 56 YEARS, 3 . SRI M VIJAYA S/O LATE MARIYALLAPPA, AGED ABOUT 49 YEARS, 4 . SRI M GAJENDRA S/O LATE MARIYALLAPPA, AGED ABOUT 46 YEARS, 5 . SMT B K RATHNAMMA W/O LATE SRI M SRINIVAS AGED ABOUT 51 YEARS, 6 . SMT SWETHA D/O LATE SRI M SRINIVAS, W/O SRI MANJUNATHA, AGED ABOUT 29 YEARS, NO.1 TO 6 ARE ALL RESIDENTS OF NO 58/3, 5TH CROSS, YELLUKUNTE, BOMMANAHALLI POST, BENGALURU - 560 068. ...APPELLANTS 5 AND: 1 . SMT. NAGAMMA W/O LATE MUNIYALLAPPA, AGED ABOUT 60 YEARS, 2 . SRI SOMESH S/O LATE MUNIYALLAPPA, AGED ABOUT 47 YEARS, 3 . SRI RAKSHITH S S/O SRI SOMESH, AGED ABOUT 22 YEARS, 4 . SRI MANJUNATH S S/O SRI SOMESH, AGED ABOUT 20 YEARS, 5 . SMT BHARATHAMMA D/O LATE MUNIYALLAPPA, AGED ABOUT 46 YEARS, 6 . SRI YALLAPPA S/O LATE MUNIYALLAPPA, AGED ABOUT 35 YEARS, 7 . KUMARI CHETHANA D/O SRI YALLAPPA, AGED ABOUT 1 YEARS, SINCE MINOR REPRESENTED BY HER NATURAL GUARDIAN FATHER SRI. YALLAPPA 8 . SRI NAVEEN KUMAR @ NANDHISH M S/O LATE MUNIYALLAPPA, AGED ABOUT 35 YEARS, 9 . SMT. MANJULA D/O LATE MUNIYALLAPPA, AGED ABOUT 32 YEARS, 6 NO.1 TO 9 ALL ARE R/AT NO. E80/1, 6TH CROSS, 1ST MAIN, NEAR SAMUDAYA BHAVANA, YELLUKUNTE, BENGALURU - 560 068. 10 . SRI. M RAVICHANDRA S/O SRI M MUNIYAPPA, AGED ABOUT 48 YEARS, R/AT NO 97, VENKATESHWARA TEMPLE ROAD, MANGAMMANAPALYA BOMMANAHALLI, BENGALURU-560068 11 . SRI. DILIP R S/O SRI T RAJAPA, AGED ABOUT 34 YEARS, RESIDINGA T NO 09, ISIRI NILAYA, D R LAKE VIEW, ROOPENA AGRAHARA, BENGALURU - 560068 ….RESPONDENTS (BY SRI. V.RAJANNA, ADVOCATE FOR C/R1 TO R5, R8, R9; SRI. R.V.NAIK, ADVOCATE FOR R6, R9, R10, R7, IS MINOR REP. BY R-6) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(R) OF THE CPC, PRAYING TO CALL FOR RECORDS IN OS NO. 600/2024 FROM THE COURT OF IX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU B) SET ASIDE THE IMPUGNED ORDER DATED 06.04.2024 PASSED ON I.A.NO.II FILED UNDER ORDER XXXIX RULE 1 AND 2 OF CPC BY THE IX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN OS NO.600/2024. THESE MISCELLANEOUS FIRST APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 25.02.2025; THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: 7 CAV JUDGMENT Both these appeals have been filed by the plaintiffs under Order 43 Rule 1(r) of CPC, challenging the order passed by the IX Additional City Civil and Sessions Judge, Bangalore, seeking to set aside the order passed in O.S. No. 600/2024 on I.A. No. I and II of CPC, wherein the applications filed by the plaintiffs seeking injunction under Order 39 Rule 1 and 2 of CPC were rejected. 2. Heard the arguments of the learned counsel for the plaintiffs and the learned counsel for the defendants. 3. The plaintiffs filed I.A. No.I under Order 39 Rule 1 and 2 of CPC for restraining the defendants from interfering with the peaceful possession and enjoyment of the schedule property and I.A. No.2 for restraining the defendants from CORAM: HON'BLE MR. JUSTICE K.NATARAJAN RESERVED FOR ORDERS ON: 25.02.2025 PRONOUNCED ON : 14.03.2025 8 alienating, encumbering, or creating any third-party interest in the schedule property until the disposal of the suit. 4. The plaintiffs-appellants contended that they have filed the suit for declaration and consequential injunction, alleging that their father, Mariyellapa, was the absolute owner of the land bearing Sy. No. 25/1, measuring 25 guntas, situated at Yellakunte Village. He acquired the property through a sale deed dated 28.06.1968, having purchased it from one B.K. Lakshmaiah, who had earlier acquired a larger extent of land through a sale deed dated 27.11.1967, executed by one Munivenkatappa and others. However, the father of the plaintiffs acquired only 25 guntas, developed several sites and sold them to various individuals. One such sale deed was executed in 2004 in respect of Site No.37 in favor of D.R. Shankarappa and his wife, Smt. Vasantha. The said property is situated on the western side of the schedule property. The schedule property, in its composite unit, comprises two sites bearing Nos. 35 and 36, which were retained by their father after selling various other 9 sites. Being the absolute owner, the plaintiff's father gifted Site Nos. 25/35 and 25/36 to the plaintiffs through a registered gift deed dated 03.02.2011. Thus, the plaintiffs became the absolute owners of the schedule property, which now falls under the jurisdiction of BBMP. 5. The plaintiff's father had executed a General Power of Attorney (GPA) in favor of one S. Lakshmaiah in the year 1987 upon receiving sale consideration. Based on the said GPA, another document was executed in favor of one Samuel and Devdas. Subsequently, a false case was filed against these purchasers and a decree was obtained behind the back of the actual owners. It is further alleged that the defendants No.1 to 9 have executed a sale agreement in favor of defendants No. 10 and 11 based on fake documents, attempting to extract money from the rightful land owners. They are trying to interfere with the plaintiffs property, claiming ancestral rights and have created further litigation. Hence, the plaintiffs have filed the suits. 10 6. The plaintiffs also filed both I.A.Nos. I and II seeking an injunction against the defendants. 7. Defendants No. 1 to 9 appeared through their counsel in the Trial Court and filed written statements, denying all the averments made in the plaint as false. They contended that defendants No. 10 and 11 are residents of the adjacent locality and have known about the schedule property for several years. In October 2013, defendants No. 1 to 9 approached defendants No. 10 and 11, offering to sell the schedule property due to urgent financial requirements. The defendants were aware that they were in possession of the schedule property. Upon obtaining a legal opinion, they discovered that the schedule property was carved out of Thoti Inamti land, granted to Muniyellappa, the husband of defendant No.1, in 1982. However, much before the grant, their family was in possession of the land. 8. The defendant Nos.1 to 9 had put up a barbed wire fence around the property and have been enjoying the 11 same for a long time. Even though the property was granted and alienation was prohibited, but after the lapse of the ceiling period, there was no bar on purchasing it. Hence, after negotiations, defendants No.10 and 11 agreed to purchase the property from defendants No.1 to 9. The plaintiffs, attempting to interfere with the schedule property, filed a suit for injunction in O.S. No. 1474/2020. After filing the suit, the plaintiffs were restrained from interfering with the schedule property. The other defendants proceeded to execute the sale deed in favor of defendants No. 10 and 11, having received Rs.10,00,000/- (Rupees Ten Lakhs only). Therefore, it is contended that the plaintiffs cannot seek to set aside the agreement of sale and are attempting to grab the property by taking undue advantage of the weakness of defendants No.1 to 9. There is no prima facie case in favor of the plaintiffs. Hence, they prayed for dismissal of the suit. 9. Defendants No. 10 and 11 filed a memo adopting the written statement of defendants No. 1 to 9 and they also 12 reiterated their written statement as objections to the I.A.Nos. I and II. 10. Upon considering the arguments of the learned counsel for both parties, the Trial Court dismissed both the applications. Hence, the plaintiffs are before this Court. 11. The learned counsel for the plaintiffs contended that the plaintiffs’ father purchased 25 guntas of land on 28.06.1968 and was in possession of the schedule property. Thereafter, several sites were formed and sold to various persons, retaining Site Nos. 35 and 36 as the suit schedule property. Subsequently, the plaintiff’s father executed a gift deed in favor of the plaintiffs on 03.02.2011. Third parties interfered in the schedule property, prompting the plaintiffs to file a suit in O.S. No. 3893/2017, which resulted in an injunction decree dated 25.01.2021. The gift deed executed in favor of Lakshmaiah and Prakash was declared null and void and not binding on the plaintiffs. Thereafter, a Regular 13 First Appeal (RFA) was also filed in RFA No. 168/2021, which is pending before this Court. 12. It is also contended that defendants No. 2, 5, 8 and 9 filed O.S. No. 1474/2020, represented by one Karthik, against the plaintiffs, which is also pending. Defendants No. 10 and 11, without any right over the schedule property, are trying to interfere, which led to the present suit. The Trial Court committed an error in not granting an injunction in favor of the plaintiffs. Defendants No. 10 and 11 have attempted to grab the property solely based on the agreement of sale. There is a prima facie case in favor of the plaintiffs for granting an injunction. If, the injunction is not granted, the plaintiff will be put to hardship and loss. The Trial Court erred in dismissing the application. Therefore, prayed for allowing this appeal. 13. Per contra, the learned counsel for the defendants contended that the land in question is Thoti Inam land i.e.Sy.No.25. It was granted to Muniyellappa but not to the 14 plaintiffs. The RTC does not show the name of the plaintiffs’ father. The sale deed of Muniyellappa was purported in 1982. He further contended that as per the schedule property in O.S. 3893/2017, the land was shown as Sy. No. 25 but not 25/1. One Kartik filed a suit in O.S. 1474/2020 in respect of the same property and an injunction was granted, which is still pending. The plaintiffs in O.S. 1474/2020, i.e., defendants No.1 to 9, executed an agreement of sale in favor of defendants No.10 and 11. The schedule property was gifted by the mother in favor of defendants No.1 to 5. They are in possession of the property and there is no prima facie case in favor of the plaintiffs. Hence, the counsel prayed for the dismissal of the appeal. 14. Having heard the arguments and perused the records, it is revealed that the plaintiffs claim the right over the property in respect of Sy. No. 25/1 of Yellakunte village, which is said to have been acquired by the father of the plaintiffs on 28.06.1968. The said property was originally acquired by one B.K. Lakshmaiah, who purchased it under 15 the sale deed dated 27.11.1967. The said land measures 25 guntas. Later, the father of the plaintiffs formed sites and sold them to various persons, retaining only two schedule properties. 15. The contention of defendants No.1 to 9 in their written statement is that a portion of the land in Sy. No. 25, to the extent of 19 guntas in Yellakunte village, is attached to the office of Thoti Inamati. Originally, Sy.No.29 to the extent of 4 acres 11 guntas and Sy.No.25, measuring 1 acre 38 guntas of Yellakunte village were Thoti Inamati lands, which were enjoyed by the forefathers of the defendants. The original claimants were Maddurappa, Kaverappa and Munivenkatappa. They said to have sold two acres of land in favor of one B.K. Lakshmaiah and 1 acre 20 guntas in favor of M.Pillareddy in Sy.No.29. Additionally, 31 guntas of land was retained by the claimants. In Sy. No.25, they sold 19 guntas of land in favor of B.K. Lakshmaiah. In turn, the said B.K. Lakshmaiah sold the land in favor of Smt. Jayalaxmi. The said Jayalaxmi subsequently regularized the purchased 16 land through an order passed by the Assistant Commissioner dated 05.07.1971. As such, a portion of the land was left to Jayalaxmi. The remaining land in Sy.No.29 was sold in favor of M.Pillareddy and in Sy. No. 25, to the extent of 19 guntas, it was sold to B.K. Lakshmaiah. The remaining 1 acre 19 guntas was retained by the claimants. In total, 1 acre 38 guntas of land was restored to the government and re- granted to 20 persons equally by the Tahsildar vide order dated 19.08.1982. 16. The said Muniyellappa, husband of defendant No. 1 and father of defendants No.2 to 9, got about 4 guntas of land in Sy.No.25 of Yellakunte village. The re-granted properties were developed as residential properties. The land consumed while forming the layout left a remaining extent of 60x40 feet, which was retained by the Muniyellappa’s family, who continued to enjoy the same. The property was notified and identified by the Yellakunte office as Khata No.25, property Nos.35 and 36 and the same was entered in BBMP records. Subsequently, defendant No. 1 gifted the property 17 in favor of the other defendants and they are enjoying the property. 17. Upon careful perusal of the record, the plaintiffs claim the property in Sy.No. 25/1, measuring 25 guntas, said to have been purchased by his father from B.K. Lakshmaiah, who had purchased the same in 1967. However, the said lands were purported to the government by the order of the Tahsildar in HOA.CR.155/1980-81 dated 19.08.1982 and were subsequently re-granted to the husband of the first defendant. Consequently, Muniyellappa is said to have retained only two sites, which were numbered as Khata No.25, property Nos. 35 and 36. Later, the first defendant gifted the same to the other defendants. 18. Once the land has been purported and that too as Thoti Inamati granted land to Muniyellappa, the question of acquiring this land by the plaintiff's father and subsequently by the plaintiffs does not arise. The plaintiffs have not been able to show how Sy.No.25/1 became Sy.No.25. They have 18 also filed a suit where no injunction was granted. Such being the case, there is no prima facie case made out by the plaintiffs for granting an injunction in his favor. 19. The plaintiffs were not able to show that their father's name was mutated in the suit schedule property in the revenue records. Once the land has been purported to the government and re-granted to the ancestors of defendants No.1 to 9, they are in possession of the schedule property. Even though the property number is shown as Sy.No.25 and site numbers as 35 and 36, the plaintiffs have only shown the old property number as Sy.No.25, claiming his father purchased land in Sy.No.25/1. Therefore, at this stage, the Court cannot jump to the conclusion that both are the same property. On the other hand, since the defendants are in possession of the schedule property. Hence, the balance of convenience does not lie in favor of the plaintiffs. 20. The plaintiffs have also failed to make out a case that they will suffer hardship and loss, if an injunction is not 19 granted. Further, they are not in a position to establish that they are the lawful owners. Therefore, granting an injunction does not arise and the defendants cannot be restrained from interfering with the suit schedule property. 21. Though, the appellants also sought to restrain the defendants from alienating, encumbering and creating third party interest in the suit property, by looking into the case of the plaintiffs, the property claimed by the defendants is already purported by the State and re-granted to the ancestors of defendants No.1 to 9. The claim of the plaintiffs is in respect of property bearing Sy.No.25, but their father had purchased property in Sy.No.25/1 and there is no document to show how Sy.No.25/1 become Sy.No.25. The defendants claim that they are the legal heirs of original grantee and after the prohibition period, they may attempt alienating, encumbering and creating third party interest in the suit property. Defendants No.10 and 11 agreed to purchase the schedule property by spending lakhs of rupees. The plaintiffs have already filed a suit and were not able to 20 obtain any injunction. That matter is also pending. Such being the case, the question of restraining the defendants from alienating, encumbering and creating third party interest in the suit property does not arise at all, as the plaintiffs have failed to make out prima facie case in their favour. 22. The Trial Court by considering the judgment and decree passed in OS No.3893/2017, wherein the first appeal is pending before this Court and one more suit is also filed, which is also pending, has rightly rejected the applications. Such being the case, there is no error committed by the Trial Court in rejecting the applications of the plaintiffs. Therefore, this Court does not find any error or illegality or perversity in the order of the Trial Court. Both the appeals devoid of merits, are liable to be dismissed. 23. Accordingly, both the appeals are dismissed. Sd/- (K.NATARAJAN) JUDGE NJ CT:SI