C. v. Manjunath S/o Venkatanarasimhaiah VS Narayanappa S/o late Muniyappa @ Kayyalappa
2017-09-01
B.V.NAGARATHNA
body2017
DigiLaw.ai
JUDGMENT : Though the appeal is listed for admission, with the consent of the learned counsel on both the sides, it is heard finally. 2. Appellants are the defendants in O.S.No.18/2013, which is pending on the file of Senior Civil Judge & JMFC, Devanahalli. That suit has been filed by the respondent-plaintiffs seeking specific performance of an agreement to sell dated 25.06.2007 in respect of four sites formed in ‘A’ Schedule property, which are described in ‘B’ Schedule property. Along with the plaint, an application under Order XXXIX Rule 1 and 2 read with Section 151 of Code of Civil Procedure, 1908 was filed by the plaintiffs seeking an exparte order of temporary injunction. That application has been allowed by order dated 29.03.2014. Being aggrieved by that order, the defendants have preferred this appeal. 3. I have heard the learned counsel for the appellants and learned counsel for the respondents and perused the material on record. 4. From the contentions made by appellants’ counsel, it is noted that the main grievance of the appellants is with regard to the operative portion of the order passed by the trial Court in as much as it states that the defendants, their agents or anybody claiming under or through them are temporarily restrained from alienating or encumbering ‘B’ Schedule property in any manner, pending disposal of the suit. According to the appellants, ‘B’ schedule property refers to four sites measuring 30 x 40 feet each, east or north facing site, situated at Sy.No.48/1 measuring 1 acre 28 guntas excluding 1 gunta of Kharab land situated at Billamaranahalli village, Jala Hobli, Bangalore North Taluk, Bangalore District. But there is no proper identification of the said sites. As a result, the appellants have been restrained from dealing with any of the sites in ‘A’ schedule property. 5. Per contra, learned counsel for the respondents-plaintiffs submits that plaintiffs do not intend to come in the way of the appellants dealing with the sites of ‘A’ schedule property. They are only interested in specifically reserving four sites measuring 30 x 40 feet formed in ‘A’ schedule property. It is in that context, schedule ‘B’ has been appended to the plaint. 6.
They are only interested in specifically reserving four sites measuring 30 x 40 feet formed in ‘A’ schedule property. It is in that context, schedule ‘B’ has been appended to the plaint. 6. On considering the respective contentions of learned counsel for the parties, I find that the suit has been filed seeking specific performance of agreement to sell dated 25.06.2007 in respect of four sites, which are formed in ‘A’ schedule property. Therefore, the subject matter of the suit is four sites measuring 30 x 40 feet each, which are formed in ‘A’ schedule property. Hence, apart from four sites, which are identified by the appellants in terms of what is stated in ‘B’ schedule to the plaint, defendants would be at liberty to deal with other sites formed in ‘A’ schedule. 7. In the circumstances, the impugned order is modified by restraining defendants, their agents or anybody claiming under or through them from alienating or encumbering four sites measuring 30 x 40 feet each, east or north facing sites formed in ‘A’ Schedule property pending disposal of the suit. It is made clear that after identifying those four sites and intimating the same to the plaintiffs, defendants are at liberty to deal with the other sites formed in ‘A’ schedule property in any manner known to law. Accordingly, the appeal is disposed of. In view of disposal of the appeal, I.A.No.1/14 also stands disposed.