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2022 DIGILAW 12 (KAR)

Gnanendra C. S. v. Saroja M.

2022-01-03

ASHOK S.KINAGI

body2022
JUDGMENT 1. The appellant being aggrieved by the order dtd. 22/10/2021 passed on I.A.Nos.1 and 2 in O.S.No.7464/2013 by XXXIX Additional City Civil and Sessions Judge, Bengaluru City (CCH-40), has filed this appeal. 2. Brief facts leading rise to filing of this petition are as under: The appellant has filed a suit in O.S.No.7464/2013 seeking for the relief of specific performance of contract and also for the relief of perpetual injunction. In the said suit, the appellant has filed the applications i.e., I.A.No.1/2021 seeking for the relief of an order of temporary injunction restraining the respondent No.4 from puttingup any construction/carrying out any development activities over the suit schedule property and to maintain status-quo during the pendency of the suit and I.A.No.2/2021 for the relief of temporary injunction restraining the respondents No.1 to 4 from alienating the suit schedule property during the pendency of the suit. The Trial Court after hearing the parties, passed the impugned order dtd. 22/10/2021, dismissing the application filed by the appellant. The appellant being aggrieved by the said order, has filed this appeal. 3. Heard learned counsel for the appellant and learned counsel for respondent No.4. 4. Learned counsel for the appellant submits that respondent No.1 has executed agreement of sale in favour of the appellant on 25/9/2002. He further submits that respondent No.2 - General Power of Attorney holder of respondent No.1 had executed a registered sale deed dtd. 25/2/2005 in favour of respondent No.3. Respondent No.3 in turn had executed a sale deed in favour of respondent No.4. He further submits that respondent No.4 is trying to change the nature of the suit schedule property. He further submits that the Trial Court has committed an error in dismissing the application. Hence, on these grounds, he prays to allow the appeal. 5. Per contra, learned counsel for respondent No.4 submits that the appeal filed by the appellant challenging the orders on I.A.Nos.1 and 2 is not maintainable as no separate appeals have been filed by the appellant. He further submits that respondent No.1 alleged to have executed an agreement of sale in favour of the appellant in the year 2002, and the suit came to be filed in the year 2013. He further submits that respondent No.2 being a Power of Attorney holder of respondent No.1 had executed a registered sale deed in favour of respondent No.3. He further submits that respondent No.1 alleged to have executed an agreement of sale in favour of the appellant in the year 2002, and the suit came to be filed in the year 2013. He further submits that respondent No.2 being a Power of Attorney holder of respondent No.1 had executed a registered sale deed in favour of respondent No.3. Respondent No.3 in turn sold the said land in favour of respondent No.4. Respondent No.4 after obtaining construction permission, has proceeded with the construction. He also further submits that in case, if the appellant succeeds in the suit, the appellant can very well take the possession of the property. He further submits that if injunction is granted, at this stage, respondent No.4 would be put to irreparable loss. Hence, on these grounds, he prays to dismiss the appeal. 6. Perused the records and considered the submissions made by learned counsel for the parties. 7. It is the case of the appellant that respondent No.1 had executed an agreement of sale in the year 2002 and suit came to be filed in the year 2013. Before filing the suit respondent No.2, being a Power of Attorney holder, had sold the suit schedule property in favour of respondent No.3 under a registered sale deed dtd. 25/2/2005. Respondent No.3 in turn sold the suit schedule property in favour of respondent No.4. The appellant has not challenged the registered sale deed executed by respondent No.2 in favour respondent No.3 and also sale deed executed by respondent No.3 in favour of respondent No.4. As such, the registered sale deed came to be executed prior to the filing of suit for specific performance. Further, respondent No.4 after obtaining construction permission from the competent authority has commenced the construction work. Respondent No.4 has dig the borewell. Further Respondent No.4 has invested huge amount for construction. The Trial Court has already made an observation that respondent No.4 is permitted to continue to raise the construction, the interest of the appellant can be protected by making it clear that the construction raised shall be subject to the final decision of the suit and in case the suit is decreed in favour of the appellant, then respondent No.4 will either demolish the construction or shall hand over the same to the appellant without asking for any equity. The Trial Court has protected the interest of the appellant in the impugned order. Hence, I do not find any grounds to interfere with the impugned order. Accordingly, appeal is dismissed.