1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN MISCELLANEOUS FIRST APPEAL NO.2997 OF 2024 BETWEEN: ...APPELLANT (BY SRI. KAMALESHWAR POOJARY, ADVOCATE) AND: SRI. H. LANKAPPA S/O LATE HANUMANTHAPPA, AGED ABOUT 70 YEARS, RESIDING AT NO.191, 4TH PHASE, 3RD BLOCK, 7TH MAIN, BASAWESHWARA NAGARA, BANGALORE - 560 079. …RESPONDENT (BY SRI. SAGAR B B., ADVOCATE) THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 27.02.2024 PASSED ON I.A.NO.1 IN OS.NO.7961/2022 ON THE FILE OF THE 24TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH.NO.6, REJECTING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC. THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 04.02.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: SRI. B. S. MANJUNATH S/O LATE B. K. SRIKANTAIAH, AGED ABOUT 71 YEARS, RESIDING AT NO.282/A, 2ND A MAIN ROAD, 1ST PHASE, GIRINAGARA, BANGALORE - 560 085. 2 CORAM: HON'BLE MR JUSTICE K.NATARAJAN CAV JUDGMENT This appeal is filed by the appellant/plaintiff under Order 43 Rule 1(r) of CPC., for setting aside the order passed by the XXIV Addl. City Civil and Session Judge in OS.No.7961/2022 dated 27.02.2024 on the I.A.No.1 for having rejected the temporary injunction application filed under Order 39 Rule 1 & 2 of CPC. 2. Heard the arguments of learned counsel for the appellant and the learned counsel for the respondent. 3. The appellant was the plaintiff and the respondent was the defendant before the Trial Court. The ranks of the parties are retained for the sake of convenience. 4. The case of the plaintiff before the trial court is that the plaintiff filed the suit for injunction restraining the defendant from interfering with the suit schedule property contending that the suit schedule property was purchased for valuable sale consideration under the sale deed dated 03.02.2012 from Smt.Rathna Murthy and his vendor handed RESERVED FOR ORDERS ON: 04.02.2025 PRONOUNCED ON : 14.02.2025 3 over the physical possession of the schedule property which is a vacant site and around the site full compound wall was built by his vendor. After purchase plaintiff obtained the khatha from the BBMP, the revenue entries effected in his name and also paid the taxes. On 05.12.2022, the plaintiff came to know the defendant has white washed the front portion of his property compound wall. Immediately on 09.12.2022 the plaintiff wrote the site number and owner name on the compound wall, on the next day the defendant demolished the front portion of compound wall and attempted to interfere with the plaintiff possession. Therefore the plaintiff lodged the complaint to the R.R.Nagar police station on 11.12.2022 and the plaintiff not able to resist the defendant except due process of law. Hence, approached the court by seeking injunction. 5. The appellant also filed Interlocutory Application for seeking temporary injunction by filing application under Order 39 Rule 1 & 2 of CPC., and filed affidavit by stating the averments made in the plaint and seeking injunction. 6. The defendant filed written statement and filed memo for adopting the written statement as objection. It is 4 contended that the suit is not maintainable, the defendant has purchased Sy.No.238 measuring 2 acre 30 guntas including 4 guntas of kharab, under the sale deed dated 21.07.1988. The defendant is in possession and occupation of the entire extent of 2 acre 30 guntas and plaintiff trying to trespass into the land in December 2022 and the same was resisted by the defendant. The plaintiff suppressed the material facts and seeking injunction. The plaintiff is very well aware that the sale deed dated 17.12.1994 i.e., of Vishwabharathi Housing Co- operative Society Limited does not have any right, title or interest over the suit schedule property. With an oblique motive of defeating the defendant's legitimate right, title and interest a false sale deed has registered in favour of the plaintiff. There are several suits which were instituted against the owner of Sy.No.238. The defendant is in possession of the suit schedule property. The revenue records stands in his name. Further contended that the plaintiff claiming schedule property under the society in favour of which there is no acquisition and there was no notification under Section 6(1) of Land Acquisition Act. The Writ petition was also filed which is dismissed, SLP also came to be dismissed. The daughters of 5 Late Hanumanthappa had filed suit in O.S.No.5691/98 which came to be decreed, the RFA also dismissed, FDP came to be drawn, in which 1 acre 15 guntas including 2 guntas of Kharab falls to the share of the vendor of the defendant who is the son of late Hanumathappa. The various suits were filed in OS.No.7888/2019, OS.No.7598/2019, OS.No.8773/2019 and 925/2008 filed by the society and the purchasers have also been dismissed. When the society itself is not having right, their vendors cannot exercise any right over the suit schedule property. Hence, prayed for dismissing of the application. 6. The Trial court after hearing the arguments, framed three points for consideration, regarding prima facie, balance of convenience and irreparable loss and answered the points against the plaintiff, accordingly dismissed the application. Being aggrieved by the same, plaintiff is before this court. 7. The learned counsel for the appellant/plaintiff has seriously contended that the very defendant said to be purchased the land in Sy.No.238, measuring 2 acre 30 guntas from Hanumathappa. Subsequently, he has sold the property by executing GPA in favour of the society and also agreement of sale. Thereafter, the Vishwabharathi Housing Co-operative 6 Society formed the layout and allotted suit schedule property to the Smt.Rathna Murthy, who is member of the society and inturn the Smt.Rathna Murthy sold the property to the plaintiff under the sale deed dated 03.02.2012. The Smt.Rathna Murthy sale deed was executed on 23.11.1993. It is contended that the Lankappa the respondent/defendant has created all the troubles to the parties. Even though he has purchased 2 acres 30 guntas in Sy.No.238. Subsequently, he has received money executing the agreement of sale and GPA and thereafter the society formed the layout and allotted the properties to the members and it is also contended that the society gets ostensible right under Section 41 of TP Act, and sale deed become valid and the GPA and agreement of sale was not challenged by any person and subsequent to the litigation the defendant also suffered decree on the partition suit filed by the one of the family members of the Hanumanthappa, and 1 acre 15 guntas of land fallen to the share of the other family members of Hanumanthappa, and Hanumanthappa share was fallen to the defendant's share under the sale deed purchased by him and he has already handed over to the society. In turn, the society already 7 executed the sale deeds by forming the layouts. Therefore, it is contended that the defendant is trying to interfere once again in the suit schedule property. After alienating the same he has no right to alienate. Hence, the Trial Court has not properly appreciated the documents on record and rejected the application. Hence, prayed for granting injunction. 8. Per contra respondent/defendant counsel supported the orders and contended that under Section 41 of TP Act., the ostensible owner has been not contested before the trial court, Under Section 4(1) notification was issued on behalf of the society. But subsequently there was no subsequent final notification, therefore the society do not have any right over the schedule property for allottee. There are various litigations pending between the allottees and society and the cases were dismissed. Admittedly, the defendants vendors family filed partition suit and obtained 50% of the property, the same is in possession of the defendant. Therefore, when the society do not get any right over the property, the plaintiff or plaintiff's vendor will not derive any right over the property. Hence, the trial court rightly dismissed the application. Hence, prayed for dismissing the appeal. 8 9. Having heard the arguments and perused the records the points that arises for my consideration are; i) Whether the plaintiff made out prima facie case in his favour? ii) Whether the balance of convenience lies in favour of the plaintiff? iii) Whether the plaintiff put into to hardship if the injunction is not granted? 10. On perusal of the records reveals that the plaintiff said to be put in possession by purchasing the suit schedule property from one Smt. Rathna Murthy on 03.02.2012 under sale deed. Smt. Rathna Murthy said to be purchaser of the property from the Vishwabharthi Housing Co-operative Society Limited who is a member and allotee of the site by the said society. It is also contended that the Housing Co-operative Society said to be entitled for agreement of sale with one Lankappa and obtained GPA from him. It also reveals from the records that the said Lankappa the defendant/respondent herein had purchased the land in Sy.No.238 measuring 2 acres 30 guntas including 4 guntas of kharab under the sale deed dated 21.07.1988 from the children of one Hanumanthappa. Subsequently, the daughter of Hanumanthappa has filed a suit against the vendors of the defendant for partition and separate 9 possession in OS.No.5691/1998 the suit was decreed, the appeal also came to be dismissed, the FDP also drawn and 1 acre 15 guntas land including 2 guntas of kharab land fallen to the share of the vendors of the defendant Lankappa i.e., son of Hanumanthappa and half share gone to the daughter of Hanumanthappa the original owner. Thereby, the defendant Lankappa got only 1 acre 15 guntas of land including 2 guntas of kharab out of 2 acres 30 guntas purchased by him on 21.07.1988. However, prior to the decree the defendant Lankappa executed a agreement of sale and a GPA in favour of the Vishwabharthi Housing Co-operative Society Limited and in turn the Vishwabharthi Housing Co-operative Society Limited has formed the layout and allotted sites to Smt. Rathna Murthy the vendor of the plaintiff. The defendant Lankappa has not been able to get entire 2 acres 30 guntas of land, but he got only half of the said land under the purchase and he has lodged half portion of the land to the daughter of his vendor and he has executed a GPA in favour of the society. Thereby, the society has formed a layout by obtaining the conversion order and allotted site to the vendor of the plaintiff one Smt. Rathna Murthy who is a member allottee of the said 10 society. The sale deed of the plaintiff has not been challenged by Lankappa. The GPA executed in favour of the society has not been not cancelled by Lankappa and he has handed over the property to the Society by way of agreement of sale and GPA. The GPA has acted upon by the society by forming the layout and allotting to its members. Though the defendant has given entire 2 acres 30 guntas of land to the society, but in view of the partition and half share obtained by the sisters of vendors of the defendant, the society got only half share of the property i.e., 1 acre 15 guntas, out of which it formed the layout and allotted the sites to various allotees. Until cancelling the GPA and agreement of sale by Lankappa even not get right over 1 acre 15 guntas of land which was already last to the society and thereby, the society become ostensible owner under Section 41 of the Transfer of Property Act, 1882. 11. In view of the agreement of sale and the GPA, the society becomes ostensible owner and site was allotted to Smt. Rathna Murthy and Smt. Rathna Murthy sold the site to the plaintiff, thereby plaintiff has become the prima facie lawful owner and in possession of the suit schedule property. The defendant without cancelling the GPA, he gave half of the 11 property to the sister of his vendor and remaining property to the society. If he has now retained the land in his favour, he has no right to form any layout or cancel any site in order to retain himself or selling to any other third party. Therefore, the defendant should challenge the sale deed of the plaintiff and challenging the allotment of the society, the defendant do not have any balance of convenience in his favour and on the other hand the plaintiff has balance of convenience in his favour. 12. Though some of the members of the society have filed the suit the said suits came to be dismissed and it is also contended by the respondent counsel that a preliminary notification issued by the Government on behalf of the society under Section 4(1) of the Land Acquisition Act, 1894 and there is no final notification issued. Thereby, the society do not have any right over the schedule property. But the fact remains the land was not acquired by the state and handed over to the society. But the society has purchased the land from Lankappa defendant herein. The question of contending that the society is not a owner is not acceptable and on the other hand the society become ostensible owner under the GPA and allotted 12 the sites to the allotiees under Section 41 of the Transfer of Property Act, 1882. Thereby, the defendant not able to show that he is owner of the property. Therefore, the plaintiff able to show that he is having prima facie case and balance of convenience in his favour. The defendant by taking the advantage of the partition affected and decree obtained by the daughter of Hanumanthappa, he is trying to interfere with the suit schedule property of the plaintiff. The defendant is required to restrain from interfering with the suit schedule property. In fact the defendant do not have any property retained in the said survey number. Prior to the notice the defendant himself purchased a site from the Vishwabharthi Housing Co-operative Society Limited. It has been the case, the said sale deed also refer to Sy.No.238 of the suit schedule property. Therefore, instead of granting injunction, the parties are required to maintain status quo of the suit schedule property. 13. Accordingly, I pass the following: ORDER i. The appeal is allowed in part; 13 ii. The order of the Trial Court rejecting the application under Order 39 rule 1 and 2 r/w Section 151 of C.P.C is hereby set aside; iii. The plaintiff and the defendant / respondent are directed to maintain status quo of the suit schedule property and not to put up any further construction and not to alienate the suit schedule property until disposal of the suit. Sd/- (K.NATARAJAN) JUDGE PNV CT:SK