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2020 DIGILAW 1855 (KAR)

Kethaki v. Kamalamma

2020-09-24

HEMANT CHANDANGOUDAR

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JUDGMENT : Hemant Chandangoudar, J. 1. This appeal is filed challenging the order dated 3rd January, 2020 passed by the XII Additional City Civil and Sessions Judge, Bengaluru City (CCH-27) on I.A. No. 1 filed by the plaintiff under Order 39 Rule 1 and 2 of CPC in OS No. 5106/2019. 2. Appellant has filed a suit for declaration and recovery of possession of the suit schedule property from the defendants No. 9 and 10 and also to pass mandatory injunction against the said defendants for demolition of illegal construction being put up by them in the schedule `B' property. 3. Along with the plaint, the plaintiff had filed an application in I.A. No. 1 under Order 39 Rule 1 and 2 of CPC, so as to restrain defendants No. 9 and 10 from putting up further construction. Defendants filed objections to the said application. Trial Court rejected the application filed by the plaintiff. Assailing the correctness of the order passed by the Trial Court, this appeal has been filed. 4. Learned counsel for the appellant submits that plaintiff's predecessor in interest acquired title to the property on the basis of the registered sale deed dated 6.4.1995 executed by K C Ramakrishnappa, and whereas defendants No. 9 and 10 are tracing their title on the basis of unregistered power of attorney executed in favour of the 5th defendant by K C Ramakrishnappa, who died on 25.12.2010. Therefore, the 5th defendant had no power to sell the suit schedule `B' property as the power of attorney coupled with interest ended with the death of the principal. He further submits that the sale deeds executed after the death of K C Ramakrishnappa are all non-est in the eye of law by virtue of Section 48 of Transfer of Property Act. 5. Learned counsel for the appellant submits that when the sale deed executed in favour of defendants No. 9 and 10 is non-est in the eye of law, permitting them to put up further construction would cause irreparable loss and injury to the appellant and will lead to multiplicity of proceedings for equity and damages. 5. Learned counsel for the appellant submits that when the sale deed executed in favour of defendants No. 9 and 10 is non-est in the eye of law, permitting them to put up further construction would cause irreparable loss and injury to the appellant and will lead to multiplicity of proceedings for equity and damages. In support of his submission, he placed reliance on the following decisions: 1) Maharwal Khewaji Trust (Regd.), Faridkot vs. Baldev Dass, (2004) 8 SCC 488 ; 2) P.S.G. Krishnan vs. Jyothi Narayan Das and others, 2001(1) KCCR 189 ; 3) Narasingh vs. K Basavaraj, 2010 (1) KCCR 346 ; 4) C M Balakrishnan vs. G Narayan and ors., 2013 (6) Kar. LJ 147; 5) WP No. 70670/2012 dated 10.12.2012 passed by High Court of Karnataka; 6) Julien Educational Trust vs. Sourendra Kumar Roy and others, (2010) 1 SCC 379 ; 7) Burling against John Read, Robert Pate, William Pate the Elder, William Pate the Younger, and William Martin Pate-(1850 (11) QB 904); 8) Mirza Mohammed Yousuf Baig vs. M/s. Deccan Enterprises, ILR 1996 Kar. 1618); 9) Raju Reddy vs. Commissioner, BDA, ILR 1995 Kar. 2514) 6. Learned counsel for defendants No. 9 and 10 submits that the impugned order passed by the Trial Court is perfectly legal. He would further submit, that, if defendants No. 9 and 10 are restrained from putting up further construction, it would result in causing monetary loss and hardship, and balance of convenience lies in their favour. He further submits that defendants No. 9 and 10 have filed an undertaking before the Trial Court that they will not claim any equity in the event the plaintiff succeeds in the suit regarding the improvement made over the schedule `B' property and also that, they will not alienate the suit schedule `B' property. 7. I have analysed the submissions made by the learned counsel for the parties and perused the appeal papers. 8. Trial Court while passing the impugned order has observed that defendants No. 9 and 10 are in possession of the `B' schedule property and also the said defendants are having katha and title documents over `B' schedule property. 7. I have analysed the submissions made by the learned counsel for the parties and perused the appeal papers. 8. Trial Court while passing the impugned order has observed that defendants No. 9 and 10 are in possession of the `B' schedule property and also the said defendants are having katha and title documents over `B' schedule property. It has further observed, that the question as to whether `B' schedule property is part and parcel of `A' schedule property or not and the sale deed executed in favour of defendants No. 9 and 10 is non-est in the eye of law or not requires to be adjudicated at the time of trial. At this stage, if defendants No. 9 and 10 are restrained from putting up further construction, they will be put to monetary loss and hardship. It was further observed that, no prejudice will be caused to the plaintiff if defendants No. 9 and 10 are permitted to put up further construction, since the said defendants have already undertaken that they will not claim any equity in the event plaintiff succeeds in the suit. 9. Defendants No. 9 and 10 have already put up construction up to the roof level by investing money as evidenced by the photographs produced, and at this stage, if they are restrained from putting up further construction, they will be put to monetary loss and hardship. The balance of convenience lies in their favour. The ratio laid down in the decisions relied upon by the learned counsel for the appellant are not applicable to the facts of the case, since defendants No. 9 and 10 have made out a case of irreparable loss if they are restrained from putting up further construction. The Apex Court in the case of ECE Industries Limited Vs. S.P. Real Estate Developers Private Limited and Another (2009) 12 SCC 776 has held at paras-27 & 28 as follows: "27. If ultimately, the suit filed by the appellant-plaintiff is decreed, he can be compensated in damages or the respondent-defendants may be directed to pull down the construction and deliver vacant possession to the appellant-plaintiff when no equity can be claimed for such construction by the respondent-defendants. 28. If ultimately, the suit filed by the appellant-plaintiff is decreed, he can be compensated in damages or the respondent-defendants may be directed to pull down the construction and deliver vacant possession to the appellant-plaintiff when no equity can be claimed for such construction by the respondent-defendants. 28. On the other hand, in our view, if at this stage, an order of injunction is granted against the respondent-defendants from proceeding with further construction in the suit property, it will undoubtedly destroy the constructions already made by the respondent-defendants and the respondent-defendants will suffer irreparable loss and injury for not allowing them to make construction on the suit property." 10. The above principle can be applied to this case. It is fact that, at the time of filing of suit, construction on the schedule `B' property had come up to a certain level. If defendants No. 9 and 10 are restrained from proceeding further with the construction, they will be put to hardship and monetary loss. Hence balance of convenience lies in their favour. 11. Even accepting for a moment the submission of the learned counsel for appellant, that the plaintiff has made out a prima facie for decreeing the suit, the plaintiff must establish that if defendants No. 9 and 10 are unless restrained forthwith by a temporary injunction, the plaintiff would suffer irreparable injury or such injury as would render his success in the suit totally nugatory and infructuous. The interest of plaintiff can be protected by directing defendants No. 9 and 10 to handover the vacant possession of the `B' schedule property along with the improvement made in the event the suit is decreed. For the aforesaid discussion, I do not find any illegality or infirmity in the order passed by the Trial Court exercising its discretionary power. Accordingly, appeal is liable to be dismissed and ordered accordingly. It is made clear that defendants No. 9 and 10 shall not claim any equity, in the event the plaintiff succeeds in the suit, and defendants No. 9 and 10 shall handover the vacant possession of the schedule `B' property along with the improvements made or in the alternative demolish the construction put up on the `B' schedule property at their own cost if the plaintiff so desires.