Research › Search › Judgment

Karnataka High Court · body

2001 DIGILAW 348 (KAR)

MANGALAGOWRI v. H. N. KESHAVA MURTHY

2001-04-12

CHANDRASHEKARAIAH

body2001
CHANDRASHEKARAIAH, J. ( 1 ) M. F. A. No. 3918 of 1999 is by defendant 3 and M. F. A. No. 5160 of 1999 is by defendants 1 and 2 challenging the order passed by the Trial court on I. A. No. I filed by the plaintiff (respondent 1 herein) under order 39, Rules 1 and 2 of the Civil Procedure Code in O. S. No. 4252 of 1999 on the file of the V Additional City Civil Judge at Bangalore. ( 2 ) THE parties in these appeals are referred to as arrayed in the Trial court. ( 3 ) THE plaintiff has filed a suit against defendants 1 to 3 and others for permanent injunction restraining them from interfering with the possession of the suit schedule property. In the said suit the plaintiff has made the application for an order of temporary injunction under Order 39, Rules 1 and 2 of the Civil Procedure Code to restrain defendants 1 to 3 from interfering with the suit schedule property pending disposal of the suit. The said application was resisted by defendants 1 to 3. The learned City Civil Judge after hearing both the parties granted injunction as prayed for. ( 4 ) THE facts in this case are that the plaintiff had purchased a site measuring 40' x 60' bearing No. 830 in Sy. Nos. 212 and 213 of halagevaderahalli Village, Uttarahalli Hobli, Bangalore South Taluk. The further case of the plaintiff is that one Vishwabharathi House Building co-operative Society, No, 35, Rathnavilas Road, Basavanagudi, Bangalore 4 (hereinafter referred to as 'society'), allotted the said site in his favour and had executed a registered sale deed dated 17-2-1995 in his favour. Similarly, the Society had also allotted sites and sold several sites in favour of defendants 4 to 52 and 54 to 143. The plaintiff claiming to be in possession under the above said sale deed, in the first instance, filed a suit for permanent injunction as against defendants 1 to 3 in his individual capacity. Thereafter, the plaintiff made an application to treat the said suit as a suit filed in the representative capacity by making an application under Order 1, Rule 8 of the Civil Procedure Code. This application has been allowed by the Trial Court. Thereafter, the plaintiff made an application to treat the said suit as a suit filed in the representative capacity by making an application under Order 1, Rule 8 of the Civil Procedure Code. This application has been allowed by the Trial Court. It is submitted that as against the said order the appellants in these appeals have preferred revision petitions C. R. P. Nos. 2768 and 2887 of 1999 before this Court. This Court admitted the above said petitions and granted an interim order of stay staying the order passed on the said application. The plaintiff also has filed another application for appointment of Commissioner to inspect the land and to submit the report by filing LA. No. III before the Trial Court. The said application was also allowed by the trial Court. Against that order the appellants in these appeals have filed Revision Petition Nos. 2769 and 2888 of 1999 before this Court. This Court admitted the said revision petitions and granted stay of further proceedings in this suit (O. S. No. 4252 of 1999 ). ( 5 ) THESE two appeals as stated earlier are against the order of temporary injunction granted on the application filed under Order 39, Rules 1 and 2 of the Civil Procedure Code. ( 6 ) THE defendants in the written statement and in the objections to the interlocutory application have prayed for dismissal of the suit and the application. In order to appreciate whether the plaintiff has made out a prima facie case for an order of temporary injunction, it is useful to refer to certain earlier litigations in order to know whether the Society which allotted the site in favour of the plaintiff has in fact had any title to the property in order to transfer the same in favour of the plaintiff and others. ( 7 ) THE lands in Sy. Nos. 212 and 213 were notified for acquisition under the provisions of the Land Acquisition Act for the benefit of the society by issuing notification under. Section 4 (1) of the Land Acquisition act. In the said notification the name of Nanjamma and H. Lankappa were shown as kathadars and anubavadars of the land in question. Originally, the land in Sy. Nos. 212 and 213 belong to one Chikkathayamma and Sarasamma, as they were granted occupancy right under the provisions of the Inams Abolition Act. Section 4 (1) of the Land Acquisition act. In the said notification the name of Nanjamma and H. Lankappa were shown as kathadars and anubavadars of the land in question. Originally, the land in Sy. Nos. 212 and 213 belong to one Chikkathayamma and Sarasamma, as they were granted occupancy right under the provisions of the Inams Abolition Act. Smt. Nanjamma purchased the land in Sy. No. 212 under the registered sale deed dated 11-10-1984 from Sarasamma and Sri H. Lankappa purchased the land in Sy. No. 213 under registered sale deed dated 11-10-1984 from Chikkathayamma. These two owners such as Smt. Nanjamma and Sri H. Lankappa agreed to sell their respective properties in favour of defendant 3-appellant in M. F. A. No. 3918 of 1999 under the agreements of sale even dated 11-12-1984 and put defendant 3 under the said agreement in possession of the land in Sy. Nos. 212 and 213 as per the endorsement found in the agreement of sale dated 25-12-1992. It is submitted that on the basis of the said agreement of sale executed by smt. Nanjamma and Sri H. Lankappa, defendant 3 had filed a suit for specific performance of the contract in O. S. Nos. 10186 and 10087 of 1996 in the Court of City Civil Judge, Bangalore. It is submitted at the time of argument, that the said suit has been decreed in favour of the defendant 3. ( 8 ) THE case of the plaintiff is that he and the other defendants other than defendants 1 to 3 are the allottees of sites from the Society and they are in possession of the said site from the date of the sale deed executed in their favour. Defendants 1 to 3 in their objection have clearly stated that the Society had no title whatsoever over the land in sy. Nos. 212 and 213. In support of this contention defendants 1 to 3 have produced certain orders. One of such orders is an order passed by this Court in W. P. No, 18584 of 1989. This writ petition was filed by the society for a direction to the State Government to complete the acquisition proceedings under the Land Acquisition Act since no final notification was issued under Section 6 of the Act pursuant to the preliminary notification referred to above. This writ petition was filed by the society for a direction to the State Government to complete the acquisition proceedings under the Land Acquisition Act since no final notification was issued under Section 6 of the Act pursuant to the preliminary notification referred to above. The said writ petition was dismissed by this Court on 27-8-1996 with a direction to refund the amount deposited by the Society before initiation of acquisition proceedings. As stated earlier in the preliminary notification the names of Nanjamma and H. Lankappa were shown to be the owners and anubavadars since their names appear in the revenue records as kathadars, on the basis of the registered sale deeds even prior to the issuance of the preliminary notification. The order passed by the learned Single Judge of this Court in the writ petition referred to above was challenged by the Society by way of preferring Writ Appeal No. 8766 of 1996 before the Division Bench. The division Bench by its order dated 14-12-1996 dismissed the appeal confirming the order passed by the Single Judge. At the time of the argument the learned Counsel for the appellants have submitted that they were informed that the Society has also withdrawn the amount deposited with the Government for initiation of the acquisition proceedings. From this it is seen that there is no acquisition of land in Sy. Nos. 212 and 213 for the benefit of the Society. ( 9 ) DURING the pendency of the above writ petition and the writ appeal the Society had filed suit O. S. No. 834 of 1996 for injunction in respect of the land in Sy. Nos. 212 and 213 as against the State Government and defendants 1 to 3. In addition the Society had impleaded Girinagar police, Bangalore also as one of the defendants. In the said suit the society had made an application for an order of temporary injunction under Order 39, Rules 1 and 2 of the Civil Procedure Code. The said application was rejected by the City Civil Court by its order dated 19-4-1996. As against this order the Society preferred an appeal M. F. A. No, 1953 of 1996 before this Court. This Court dismissed the appeal by confirming the order rejecting grant of temporary injunction. The said application was rejected by the City Civil Court by its order dated 19-4-1996. As against this order the Society preferred an appeal M. F. A. No, 1953 of 1996 before this Court. This Court dismissed the appeal by confirming the order rejecting grant of temporary injunction. After the dismissal of the appeal the Society had filed C. P. No. 537 of 1999 for review of the order dismissing the appeal. Civil petition was also dismissed by order dated 17-2-2000. It is submitted that as against these orders S. L. P. Nos. 13701 and 13702 of 2000 have been filed before the supreme Court and they are pending. It is further submitted that no interim order has been granted by the Supreme Court in those two special leave petitions. It is brought to my notice that Sarasamma and chickathayamma in whose favour occupancy rights were granted have filed the suit as against defendants 1 and 2 in O. S. No. 3867 of 1996 in the Court of the City Civil Judge, Bangalore for cancellation for the sale deeds executed in favour of defendants 1 and 2. In the said suit the society ia also one of the defendants. Defendant 3 in M. F. A. No. 3918 of 1999 on her own had come on record in the said suit. It is submitted that the said suit is still pending consideration. ( 10 ) THE Society had filed one more suit O. S. No. 1349 of 1997 as against the Commissioner of Pattanagere City Municipal Council and commissioner, B. D. A. for mandatory injunction to issue khatha certificates in respect of the allottees who were allotted sites in Sy. Nos. 212 and 213. In the said suit on the application filed by the Society the Civil court granted an order of mandatory temporary injunction directing the pattanagere City Municipal Council to issue khatha certificates in favour of the allottees of the sites. The said order was challenged by the commissioner, Pattanagere City Municipal Council by way of an appeal in M. F. A. No. 1935 of 1997 before this Court. This Court in the said appeal granted an interim order staying the temporary mandatory injunction granted by the City Civil Court. Thereafter, it is submitted that the suit filed by the Society itself was dismissed on 15-4-1998. This Court in the said appeal granted an interim order staying the temporary mandatory injunction granted by the City Civil Court. Thereafter, it is submitted that the suit filed by the Society itself was dismissed on 15-4-1998. The society made a criminal complaint as against defendants 1 to 3 and also as against the husband of defendant 3 alleging offences under Sections 427, 447 and 506-B read with Section 34 of the Indian Penal Code. The said complaint was registered as Crime No. 20 of 1996 on the file of the first Additional Chief Metropolitan Magistrate. The learned Magistrate at the stage of hearing before framing charge discharged the accused by ms order dated 10-6-1997. The Society had also made another complaint as against defendants 1 and 2 alleging offences under Sections 420, 406 and 120-B of the Indian Penal Code. The jurisdictional police investigated the above said complaint and filed the 'b' eport. Chikkathayamma who is the original owner of the land in Sy. No. 213 had filed a criminal complaint alleging forgery and misrepresentation relating to the sale deed dated 11-10-1984 executed by her in favour of H. Lankappa. On that complaint the jurisdictional police investigated the matter and filed the 'b' report. Similarly Smt. Sarasamma who was the original owner of the land in Sy. No. 212 filed a criminal complaint alleging forgery and misrepresentation in respect of the sale deed dated 11-12-1984. On the said complaint the jurisdictional police investigated the matter and filed the 'b' report. The above said litigation clearly discloses that the Society had not acquired any right, title or interest in respect of the lands in Sy. Nos. 212 and 213. ( 11 ) THE fact that this land was notified for acquisition by issuing preliminary notification under Section 4 of the Land Acquisition Act and it was not followed by any final notification as required under Section 6 of the Land Acquisition Act discloses that there is no acquisition proceedings acquiring land in Sy. Nos. 212 and 213 for the benefit of the society. Further, the very fact that the writ petition filed by the Society in W. P. No. 18584 of 1989 was dismissed discloses that there is no acquisition proceedings in respect of the above said land. Nos. 212 and 213 for the benefit of the society. Further, the very fact that the writ petition filed by the Society in W. P. No. 18584 of 1989 was dismissed discloses that there is no acquisition proceedings in respect of the above said land. In the suit filed by the Society in O. S. No. 834 of 1996, no temporary injunction was granted in favour of the Society shows that the Society was not in possession of any bit of land in the above said survey numbers. When such being the case it is not known how the Society could allot sites formed in Sy. Nos. 212 and 213 in favour of the plaintiff and others. The suit filed by the Society for mandatory injunction to issue khatha certificates in favour of the allottees referred to above also has been dismissed by the City Civil Court. If that is so, it is not known on what basis and on what material the Society could allot sites in favour of others treating as if it is its property. In view of the above said civil litigations and the criminal proceedings I am of the opinion that the Society had no title whatsoever over the land in question so as to allot the same in favour of others. ( 12 ) THE learned Civil Judge relying upon the layout plan approved by the City Municipal Council is of the opinion that the plaintiff and other allottees are in possession of the property and therefore, they are entitled for temporary injunction and accordingly granted the temporary injunction. The Pattanagere City Municipal Council had challenged the order of the mandatory injunction granted by the City Civil Court in the suit filed by the Society by way of an appeal before this Court in M. F. A. No. 1935 of 1997. This Court had stayed the mandatory temporary injunction granted by the City Civil Judge. Ultimately the suit itself was dismissed by the City Civil Court. This clearly shows that the allottees cannot claim to be the owners in possession of the said sites allotted by the Society. The case of the plaintiff is that the Pattanagere City Municipal council approved the layout plan submitted by the Society. Ultimately the suit itself was dismissed by the City Civil Court. This clearly shows that the allottees cannot claim to be the owners in possession of the said sites allotted by the Society. The case of the plaintiff is that the Pattanagere City Municipal council approved the layout plan submitted by the Society. It is not known how the Pattanagere Municipal Council had approved the layout plan submitted by the Society without ascertaining who is the owner of the land in question. Even assuming that there is a approval of the layout plan submitted by the Society it does not confer any right, title or interest on the Society which submitted the layout plan. The further case of the plaintiff is that the Society as a power of attorney holder of the landowner has got the layout plan approved and thereafter, allotted the sites in favour of defendants 1 and 2 and others. In support of this contention the plaintiff has not produced the power of attorney said to have been executed by the landowners in favour of the Society. Therefore, the said contention cannot be accepted. Further, in view of the serious litigation between the parties referred to above, there may not be any such power of attorney executed by the landowners in favour of the Society. Therefore, the Trial Court without noticing these facts committed serious error in granting temporary injunction in favour of the plaintiff. ( 13 ) SRI Venkatakrishna, learned Counsel appearing for the plaintiff, submitted that the Trial Court is justified in granting an injunction in favour of the plaintiff. In support of this contention he relied upon the decision in case of M. Kallappa Setty v M. V. Lakshminarayana Rao. The Supreme Court in the above said decision has held "person on the strength of his possession could resist interference by the defendant who has no better title than himself and get injunction even if he has not proved title to the property. In a case where two persons are claiming to be in possession of the property without any title necessarily a person can resist possession as against any other trespasser without establishing any title to the property". But here in the said case the Society had no title to the property at all as per the litigations referred to above. In a case where two persons are claiming to be in possession of the property without any title necessarily a person can resist possession as against any other trespasser without establishing any title to the property". But here in the said case the Society had no title to the property at all as per the litigations referred to above. On the other hand nothing is produced either by the plaintiff or by the defendants other than defendants 1 and 2 to show that defendants 1 and 2 have no title to the property. Under these circumstances, the decision cited by the learned Counsel for the plaintiff has no application to the facts of this case that too when defendants 1 and 2 prima facie have shown that they have title to the property. Further, it is not the case of the plaintiff that defendants 1 and 2 have no title to the property. ( 14 ) EVEN though the plaintiff had produced certain receipts for having paid the tax to the Municipality it does not speak of possession of the vacant land. Admittedly, the land in question though it is shown as an agricultural land it is a vacant land. If that is so, the possession follows title. Therefore since defendants 1 and 2 have prima facie shown that they are the owners of the property and therefore they are presumed to be in possession of the lands in question. The defendants 1 and 2 have executed the agreement of sale in favour of defendant 3. The suit filed by defendant 3 for specific performance of the contract has been decreed. Under the agreements defendant 3 was put in possession as found in the endorsement. Under these circumstances, the Trial Court is not justified in granting temporary injunction in favour of the plaintiff without considering the above said documents and the materials produced before it. ( 15 ) THE suit as stated earlier in the first instance was filed by the plaintiff in his individual capacity. Later on he made an application to treat the said suit as a suit in the representative capacity by making an application under Order 1, Rule S of the Civil Procedure Code. The interest of the plaintiff and the above defendants other than defendants 1 to 3 is separate and distinct as they claim to be the owners of the sites allotted to them. The interest of the plaintiff and the above defendants other than defendants 1 to 3 is separate and distinct as they claim to be the owners of the sites allotted to them. Therefore, there is no common interest so far as the plaintiff and the defendants other than defendants 1 and 3 either as against the Society or as against defendants 1 to 3. Hence, it is not known how the said suit could be treated as a suit filed in the representative capacity. Learned Counsel for the plaintiff relied upon the decision in the case of The Chairman, Tamil Nadu Housing Board. Madras v T. N. Ganapathi, submits that when there is a common interest suit could be filed in the representative capacity. The facts in the above said case are altogether different from the facts involved in this case. If the plaintiff and other defendants other than defendants 1 to 3 have a common interest as against the Society then they could file a suit in the representative capacity. Here there is no common interest either against the Society or against defendants 1 to 3. Therefore, the said decision has no application to the facts of this case. ( 16 ) THE plaintiff is claiming to be the owner by virtue of the allotment in respect of the site measuring 40 x 60 ft. whereas, the prayer in the suit is in respect of the entire land in Sy. Nos. 212 and 213. The application filed by the plaintiff is for an injunction in respect of the entire extent of land in both the survey numbers. The interest of the plaintiff is only in respect of the site said to have been allotted by the society. His terest as stated earlier is separate and distinct from that of the allotnant of sites made in favour of other defendants. The materials said to have been produced by the plaintiff for the purpose of temporary injunction such as tax paid receipt is only in respect of his site and not in respect of other sites. When such being the case, it is not known how the City Civil Court could grant an injunction in respect of the entire extent of land at the instance of a person who is claiming to be the owner of a bit of land. When such being the case, it is not known how the City Civil Court could grant an injunction in respect of the entire extent of land at the instance of a person who is claiming to be the owner of a bit of land. The City Civil Judge has not examined this aspect of the matter also in the impugned order. ( 17 ) THE learned Counsel appearing for the appellant in M. F. A. No. 3918 of 1999 has brought to my notice paras 33 and 34 of the impugned order and submits that the facts referred to in these two paras were neither pleaded by any of he parties or brought to the notice of the learned Judge at the time of argument. This fact has not been disputed by the learned Counsel for the plaintiff. It is submitted that except mentioning O. S. No. 3867 of 1996 filed by Sarasamma against defendants 1 and 2 in their objection the other facts disclosed in these two paras were neither pleaded in any of the pleadings filed by the parties nor brought to the notice of the learned Judge at the time of argument. In para 33 the learned Judge refers to the contents of the affidavit filed by Sarasamma in support of LA. No. I in O. S. No. 3867 of 1996 and also the payment of consideration of Rs. 8,48,000/- to her and her mother through the first defendant. In para 34 also the learned Judge referred to the contents of the affidavit wherein it is stated that she and her mother put the Society in possession of Sy. Nos. 212 and 213. The affidavit filed by Sarasamma in the above said suit has not been produced or filed before the Trial Court. Further there is no reference to affidavits filed in O. S. No. 3867 of 1996 in any of the pleadings filed by the parties. If that is so, it is not known how and from where the learned judge got these facts so as to incorporate the same in the impugned order. The reference to these facts in the impugned order though they were not pleaded have made me to suspect the integrity of the learned judge. ( 18 ) THE powers of the Appellate Court in the matter of interference in the discretionary power exercised by the Trial Court is no doubt limited. The reference to these facts in the impugned order though they were not pleaded have made me to suspect the integrity of the learned judge. ( 18 ) THE powers of the Appellate Court in the matter of interference in the discretionary power exercised by the Trial Court is no doubt limited. But, here is a case where the order impugned is not only unreasonable but also perverse. The learned Judge has not even referred to the ingredients for the purpose of granting injunction. Therefore, in my opinion the impugned order calls for interference. ( 19 ) BEFORE parting with this case I am of the view that the matter should be referred to the jurisdictional police to investigate the matter regarding fraud and cheating appears to have been played by the Society by allotting sites in favour of certain persons even though it had no title whatsoever over the property. The above said facts referred to above clearly discloses that the Society had not acquired any title to the property. If that is the case it is not known how the Society has submitted the layout plan to the Pattanagere City Municipal Council and further, it is not known how the Society could allot the sites in favour of the persons. Now in Bangalore it has become an order of the day to allot sites or alienate sites unauthorisedly without any title to the said property as there is much demand for residential sites. The Society is a registered Society under the provisions of the Karnataka Co-operative societies Act. The persons who are in need of residential sites believing that the Society having title to the property made application seeking for allotment and after allotment they invested all their life saving only with a view to have a roof over their head. On that application even though the Society had no title had allotted the sites. This in my opinion is a clear case of fraud and cheating played by the Society. Therefore, I direct the office to send the copy of the order to the jurisdictional police, byatarayanapura Police Station i. e. , to the Circle Inspector of Police, gef Post, Bangalore-26 to investigate the matter and take steps to prosecute the members of the committee of the management of the Society under the provisions of the penal law. Therefore, I direct the office to send the copy of the order to the jurisdictional police, byatarayanapura Police Station i. e. , to the Circle Inspector of Police, gef Post, Bangalore-26 to investigate the matter and take steps to prosecute the members of the committee of the management of the Society under the provisions of the penal law. ( 20 ) IN the result, I pass the following order. (i) Appeals are allowed with a cost of Rs. 2,000/- to each of the appellants; (ii) The impugned order is set aside; (iii) Respondent 1 is directed to pay the cost to each of the appellants; (iv) Office is directed to send a copy of this order to the jurisdictional police, Byatarayanapura Police Station, Mysore road, GEF post, Bangalore-26 to take steps as observed in the body of the order; (v) Office is directed to place this order in the service register of sri M. G. Hiremath, City Civil Judge in his service records. --- *** --- .