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2020 DIGILAW 1456 (KAR)

Sowbhagyamma v. Divya Shree S

2020-07-22

M.I.ARUN

body2020
JUDGMENT M I Arun, J. - By consent of learned counsel for the parties, the matter is taken up for final hearing. 2. Aggrieved by the order dated 26.02.2020 passed by XII Additional City Civil and Sessions Judge, Bengaluru on I.A.No.1 in O.S.No.9263/2019, defendant nos.1, 3 and 4 therein have preferred this appeal. 3. For the sake of convenience, the parties are referred to by their status in the original suit. 4. The plaintiff/respondent no.1 filed the suit in O.S.No.9263/2019 for bare injunction. The plaintiff has contended that she is the absolute owner of the suit schedule property bearing converted site no.4 formed out of land bearing Survey no.32, converted from agricultural to non-agricultural purpose vide Official Memorandum No.ALN SR (East) 107:2002:03 dated 28.12.2002 measuring 2,700 square feet situated at Geddalahalli village, K.R.Puram Hobli, Bengaluru East Taluk. 5. The plaintiff has further contended that she acquired right, title and interest over the suit schedule property by virtue of a General Power of Attorney dated 25.08.2005 and through a registered sale deed dated 31.12.2018. In support of her contention, she has produced a copy of general power of attorney, sale deed, encumbrance certificate, tax paid receipt, Form-B property register extract, cash deposit receipt and prepaid meter demand note issued by BESCOM and photographs of the schedule property. 6. The plaintiff has also contended that she has fenced the schedule property and the defendants, who are the neighbors, tried to encroach upon the same by dismantling the fence and she resisted the same. The plaintiff had also approached the jurisdictional police in this regard. To prevent the encroachment and to safeguard her rights over the suit schedule property, the plaintiff has filed the above suit wherein she has prayed for grant of judgment and decree restraining the defendants or any person claiming under them from interfering with the peaceful possession of the suit schedule property by the plaintiff. She has also filed I.A.No.1 under Order 39 Rules 1 and 2 of CPC wherein she has sought for an order of interim injunction in her favour against the defendants restraining the defendants or any person claiming under them from interfering with the suit schedule property, pending adjudication of the suit on merits. The grounds urged in her affidavit supporting the said interlocutory application are similar to the contentions averred in the plaint. 7. The grounds urged in her affidavit supporting the said interlocutory application are similar to the contentions averred in the plaint. 7. Defendant nos.3 and 4 have filed the written statement claiming that the plaintiff is not the owner of the suit schedule property. They admit the existence of Survey no.32 but deny the existence of Site no.4 as stated in the plaint. They contend that the entire Survey no.32 measuring 1 acre 37 guntas belonged to defendant no.1, who is their mother and that it was her ancestral property. They have further stated that there was a partition between the family members by way of a registered partition deed dated 20.06.2009 and thereafter defendant no.1 got a share of 38 guntas in the said Survey no.32. She entered into a joint development agreement and a multi storied complex has been put up in the said 38 guntas and the same has been sold to several persons. They contend that they are the owners of the remaining 39 guntas of land which is a vacant land. They have denied the existence of suit schedule property. They have denied the execution of general power of attorney and have contended that the plaintiff has created the documents and is trying to make a gain at their cost illegally. In support of their contention, they have produced a copy of the partition deed, a copy of the khatha certificate standing in the name of defendant no.1, a copy of the khatha certificate standing in the names of defendant nos.3 and 4, a copy of the joint development agreement and other documents. Defendant nos.3 and 4 have also contended that after the plaintiff obtained an ex parte interim order, she has forcefully occupied a portion of the land belonging to them and has illegally put up a shed. Hence, they have filed a counter claim wherein they have prayed for a direction to the plaintiff to restore status quo ante as on the date of the suit by removing the construction put up on a portion of their property. Defendant no.1 has also filed the written statement taking a similar stand of defendant nos.3 and 4. 8. Hence, they have filed a counter claim wherein they have prayed for a direction to the plaintiff to restore status quo ante as on the date of the suit by removing the construction put up on a portion of their property. Defendant no.1 has also filed the written statement taking a similar stand of defendant nos.3 and 4. 8. The trial court, after hearing the parties on I.A.No.1, has allowed the application filed by the plaintiff restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit property till the disposal of the suit. Aggrieved by the same, this appeal is preferred by defendant nos.1, 3 and 4. 9. Heard the learned counsel for the appellants/defendant nos.1, 3 and 4 and respondent no.1/plaintiff. Perused the records. 10. The plaintiff claims that she has become the owner of the suit schedule property by virtue of the General Power of Attorney dated 25.08.2005 and the sale deed dated 31.12.2018. The General Power of Attorney dated 25.08.2005 is an unregistered document, the execution of which is disputed by defendant nos.1, 3 and 4. Even presuming that the said General Power of Attorney is valid, it only permits the plaintiff to act as authorized in the general power of attorney but does not convey any right, title or interest over the suit schedule property in her favour. Even if there is any subsequent agreement by way of an affidavit or otherwise as observed by the trial court, the same may give the plaintiff cause of action to enforce the rights mentioned therein but does not convey right, title or interest over the suit schedule property. The plaintiff would get a right over the suit schedule property only by virtue of the sale deed dated 31.12.2018. To prove that she has a right over the suit schedule property, the burden is on the plaintiff to establish that there is a property in existence as claimed by her, she is the owner and in possession of the property and that the defendants tried to encroach illegally over her property. Only thereafter she would be entitled to temporary injunction under Order 39 Rules 1 and 2 of CPC. Only thereafter she would be entitled to temporary injunction under Order 39 Rules 1 and 2 of CPC. The document produced by her claiming it to be khatha issued by Bruhat Bengaluru Mahanagara Palike ('BBMP' for short) to prove her possession, is not a khatha but only Form-B property register extract, which is a register maintained by BBMP for properties without khatha. Further, she has not produced any approved layout plan indicating as to the existence of site no.4. 11. The defendants, on the other hand, have produced a copy of the registered partition deed which clearly shows that Survey No.32 of Geddalahalli Village, K.R.Puram Hobli, Bengaluru East Taluk measuring 1 acre 37 guntas has been partitioned between defendant no.1, getting a share of 38 guntas and defendant nos.3 and 4 together getting a share of 39 guntas. Subsequent to the partition, khatha has been issued in their favour by BBMP in respect of their portions, a copy of the same has been produced by defendant nos.1, 3 and 4. They also have produced a copy of the registered joint development agreement dated 02.11.2009. The said joint development agreement shows that defendant no.1 has entered into joint development agreement with one M/s. SMS Infrastructures in respect of her share in Survey No.32 and the said property has been developed. What remains as the vacant site is the property belonging to defendant nos.3 and 4. 12. Even presuming the General Power of Attorney executed by defendant nos.1, 3 and 4 and Mr.T.N.Chetan Kumar in favour of the plaintiff to be genuine, the same was not acted upon till 31.12.2018. In the meanwhile, defendant nos.1, 3 and 4 have partitioned the larger property of survey no.32 and even if site no.4 were to be in existence, the nature of the property has changed and defendant no.1 has entered into a joint development agreement in respect of her share with a third party. Thus, on the face of it, the vacant area in Survey no.32 belongs to defendant nos.3 and 4. As per the registered partition deed, the extent of vacant land is 39 guntas. Thus, on the face of it, the vacant area in Survey no.32 belongs to defendant nos.3 and 4. As per the registered partition deed, the extent of vacant land is 39 guntas. Thus, a perusal of the pleadings in the plaint, written statement and the documents produced therein, one cannot prima facie conclude that a site bearing no.4 carved out of Survey no.32 is in existence and the plaintiff is the owner and in possession of the same and would be entitled to temporary injunction under Order 39 Rules 1 and 2 of CPC as granted by the trial court. Further, it is noticed in the order passed by the trial court that though the sale deed is dated 31.12.2018, the trial court has confused itself that the sale deed is dated 24.07.2004 making it prior to the registered partition deed between defendant nos.1, 3 and 4 and has allowed I.A.No.1 and has granted an order of temporary injunction as prayed for. 13. For the aforementioned reasons, the appeal filed by the appellants/defendant nos.1, 3 and 4 is hereby allowed. The order dated 26.02.2020 passed by XII Additional City Civil and Sessions Judge (CCH-27), Bengaluru on I.A.No.1 filed by respondent no.1/plaintiff under Order 39 Rules 1 and 2 of CPC in O.S.No.9263/2019 is hereby set aside and I.A.No.1 is dismissed. No order as to costs. 14. It is made clear that the observations made in this appeal is only to decide the appeal and this will not come in the way of respondent no.1/plaintiff to prove her case by producing necessary evidence.