& Anr Vs. Muralidhar & Anr  Insc 1080 (12 October 2007)
Sinha & Harjit Singh Bedi
out of SLP (Civil) No. 4931 of 2007] S.B. SINHA, J:
This appeal is directed against a judgment and order dated 6.11.2006 passed by
a learned Single Judge of the Karnataka High Court in MFA Nos. 8773 of 2006 and
8939 of 2006.
Contesting defendant in the suit is Appellant No. 1 before us.
the dispute relates to site No. 433 measuring 30 ft. x 50 ft. appurtenant to
Survey No. 15/1 situate in Kattriguppa Village, Hobli Uttarahallai in the District
of Bangalore. By a notification dated 28.10.1971, Bangalore Development
Authority (The Authority) in exercise of its power under Section 18 of the
Bangalore Development Authority Act purported to have acquired Survey No. 15/1.
Authority allegedly allotted the said site to Respondent No. 2 Leela Prabhakar Rao
on 1.11.1979. Plaintiff- Respondent No. 1 is said to be in possession of site
Nos. 434 and 435. He has raised constructions thereupon. A notice was issued by
the Authority directing demolition of some alleged unauthorized construction
made by him. He filed a writ petition thereagainst which was marked as W.P. No.
32227 of 1992. The said writ petition, however, in absence of the counsel of
Respondent No. 1, was dismissed.
Respondent No. 1 later on sought permission to raise constructions in Site Nos.
434 and 435 wherefor he expressed his readiness and willingness to pay the
of sale was executed in favour of Respondent No. 2 on 23.08.1996 and a
possession certificate was issued in her favour in respect of the said site No.
433 on 5.03.1997. A deed of sale was registered in the name of Smt. Vishala Raj
for Site No. 432 on 15.09.1997 and possession certificate was issued on
22.10.1997. Appellant No. 1 herein purchased Site Nos. 433 and 432 from
Respondent No. 2 and Smt. Vishala Raj by registered deeds of sale dated
11.06.2004 and 8.06.2006 respectively.
her name was also mutated in the record of rights. A building plan was
submitted by her which was sanctioned for construction of a residential house
on the said plots.
Allegedly, Respondent No. 1 again on 7.07.2006 sought for reconveyance of Site
Nos. 434 and 435. As he apprehended that Appellant No. 1 herein would raise
constructions on Site No. 433, he filed a suit against Appellant Nos. 1 and 2,
Respondent No. 2 and the Authority in the Court of the City Civil Judge at Bangalore inter alia praying for the
them not to use the Borewell put up in site No. 433 for any purpose for all
time to come.
Directing them not to put up any compound wall or construction in site No. 433
and also not change the nature of site in any manner.
Respondent No. 1 inter alia averred that one Kapinaya was the original owner of
the property. He transferred the said property in favour of one Laxmi Devamma. Laxmi
Devamma transferred her right, title and interest in favour of A.R. Upadhyay,
father of plaintiff Respondent No. 1 by a registered deed of sale dated
12.06.1960. The said purchased land consisted of three sites admeasuring 90 ft.
x 50 ft. pertaining to Survey No. 15/1. A No Encumberance Certificate
was also issued in respect of the three sites, viz., Site Nos. 433, 434 and 435
for the period 01.04.1960 and 28.03.1999. Survey No. 15/1 in the revenue
records was shown to be belonging to the following persons:
w/o Javarayappa - 2 Acre 9 Are
Reddy and B.S. Subba Rao - 1 Acre 16 Are
s/o Nanjundaiah - 1 Acre 4 Are (iv) A.R. Upadhyaya - 90 ft. x 50 ft.
After the death of the father of Respondent No. 1, his name was entered into
the record of rights as owner thereof by an order dated 25.06.1974.
Authority sought to acquire 2 Acres 20 Gunthas of land by a notification dated
28.10.1971 which was said to be belonging to Venkata Reddy and B.S. Subba Rao.
In the said notification itself, the northern boundary was shown as part of
Survey No. 15/1. An award was made therein only in respect of 2 Acres 20 Gunthas
of land wherein the names of the awardees were shown as Venkata Reddy and B.S. Subba
Rao. In the said award again, the northern boundary was shown as part of Survey
Contention of the plaintiff is that the aforementioned Site Nos. 433, 434 and
435 were not the subject matter of the acquisition proceedings.
application for grant of interim injunction was filed by the plaintiff-
Respondent No. 1 in the said suit. Allegedly at the time of filing of suit,
Site No. 433 was vacant. An order of status quo was granted by the Trial Court
by an order dated 13.07.2006 which was extended on 17.07.2006. By an order
dated 16.08.2006, the Trial Court rejected the application for grant of
temporary injunction in the said suit. Aggrieved thereby, plaintiff Respondent
No. 1 filed MFA Nos. 8777 and 8939 of 2006 before the Karnataka High Court.
The High Court, however, opining that a triable case has been made out by the
plaintiff directed maintenance of status quo. A Special Leave Petition was
filed on 23.02.2007 before this Court. By an order dated 8.03.2007, a Bench of
this Court while issuing notice on the application for condonation of delay as
also the special leave petition directed:
notice on the application for condonation of delay as well as on the Special
Leave Petition returnable within four weeks.
stated by Counsel for the petitioners that substantial construction has been
raised on the site in question after obtaining necessary permission of the
Bangalore Development Authority (B.D.A.). The impugned order of the High Court
is stayed but any construction raised on the site in question will be subject
to the result of the appeal and at the risk and cost of the petitioners.
Before embarking upon the rival contentions of the parties, we may notice
certain disturbing features.
this Court, on the basis of the representation made by Appellant No. 1 herein,
permitted them to carry on the constructions on Site No. 433 at their own risk,
no process fee was deposited. Appellant herein obtained certified copy of the
said order from the Supreme Court Registry and commenced construction thereupon
in a post haste manner. Even a copy of the paperbook was not handed over to the
learned Advocate for the respondents. The learned counsel for Respondent No. 1
asked the Advocate On Record of the appellant to supply a copy of the paperbook
which was refused. A letter of request thereafter was served on the Advocate-On-
Record on 4.04.2007. The matter was then mentioned before this Court whereupon
by an order dated 05.04.2007, this Court directed the learned Advocate on
Record for the appellant to supply the copies of the paperbook to the learned
Advocate appearing for the respondents. Despite the same, allegedly only first
volume of the paperbook was served upon the learned Advocate for Respondent No.
1 and the second volume, which had already been filed, was not served.
Processes were filed only on 13.04.2007. An application for condonation of
delay therefor was filed. The matter came up before this Court on 23.04.2007
and by an order dated 27.04.2007 this Court vacated the interim order dated
08.03.2007, whereupon the Advocate-On-Record was changed. A personal affidavit
was filed by one Advocate Kashi Vishweshwar. An application was also filed for
recalling the order dated 27.04.2007 and for restoration of the order dated
08.03.2007. This Court on 17.05.2007 recalled the said order dated 27.04.2007
and the interim order dated 8.03.2007 was restored. Liberty, however, was granted to the
respondents for moving before the Vacation Bench in view of the extreme
Although the High court directed expeditious disposal of the suit by the Trial
Court, the defendant respondent (vendor of the appellant) filed an application
for deferring the hearing of the suit inter alia on the premise that the matter
is pending before this Court. A Vacation Bench of this Court upon hearing the
counsel for the parties by an order dated 21.06.2007 directed maintenance of
status quo and the order dated 8.03.2007 permitting construction was recalled.
It was thereafter only a memo was filed before the Trial Court for withdrawal
of their application dated 12.06.2007.
Ms. Indu Malhotra, learned senior counsel appearing on behalf of the
appellants, would submit that the High Court committed a serious error in
reversing a well-considered judgment of the Trial Judge. It was contended that
the respondents, even as far back in 1992, having not claimed any ownership in
respect of Site No. 433, were not entitled to an order of injunction. It was
pointed out that the learned Trial Judge had found as of fact that the
plaintiff-respondent had failed to show his right, title and interest in respect
of Site No. 433.
According to the learned counsel, as about 80% of the construction is already
over, this Court should allow the appellant to complete the same as otherwise
she will suffer irreparable injury.
Mr. Ravindra Keshavrao Adsure, learned counsel appearing on behalf of the
respondent No. 1, on the other hand, would submit that it is incorrect to
contend that the entire Survey No. 15/1 has been acquired, which would be
evident from the fact that the name of the plaintiffs father was shown as
owner of 90 ft. x 50 ft. of land appurtening to the said Survey No. 15/1. It
would also appear from the records that the land
of Venkata Reddy and B.S. Subba Rao had only been
The Authority appears to have been impleaded as a party to the suit.
is stated that the plaintiff had filed an interlocutory application calling
upon the Authority to produce the documents in original and the same had been
allowed by an order dated 23.02.2007.
The principal question which is necessary to be determined in the suit would be
as to whether Site No. 432 was the subject matter of any Land Acquisition
proceeding or not. Prima facie, it does not appear that the said plot was
acquired. Had entire Survey No. 15/1 been the subject matter of Land
Acquisition proceeding, the portion of the land belonging to the plaintiff-
respondent would have also been acquired. Their names also would have found
place in the notification. Possession would have been taken from them and an
award would have been made in their favour. The very fact that the northern
boundary of the land sought to be acquired has been shown as Survey No. 15/1,
prima facie, it appears that the entire Survey No. 15/1 had not been the
subject matter of acquisition.
that view of the matter the High Court was right in opining that an arguable
case has been made out. While considering an application for injunction,
existence of a prima facie case, balance of convenience of parties, irreparable
injury were required to be considered by the Civil Court.
of a relief in regard to the nature and extent thereof will depend upon the
facts and circumstances of each case. [See M. Gurudas & Ors. v. Rasaranjan
& Ors., reported in 2006 AIR SCW 4773]
This Court, however, is not oblivious of the fact that ordinarily a court of
appeal does not interfere with the discretionary jurisdiction exercised by the
learned Trial Judge. However, in this case the learned Trial Judge while
passing the order dated 16.08.2006 failed to consider the relevant question,
viz., as to whether the Authority had acquired Site No. 432 or not. That was
the principal question on the basis whereof the learned Trial Judge ought to
have proceeded with the matter. It did not do so; as a result whereof it
misdirected itself. Title claimed by the appellants herein is said to have been
derived from the Authority. If Site No. 433 was not the subject matter of
acquisition, the question of execution of any deed of sale in favour of
Respondent No. 2 herein by the Authority did not or could not arise.
Respondent No. 2 could not have transferred her right, title and interest in favour
of the appellant herein.
Omission on the part of the learned Trial Judge to consider the respective
cases of the parties, in this behalf, in our opinion, deserved interference by
the First Appellate Court. If that be the legal position, whether the plaintiff
Respondent No. 1 herein had prayed for raising any construction on Site No.
433 or not may not strictly arise for consideration.
may furthermore notice that although in the application for permission to raise
construction, such a prayer had not been made, which according to Mr. Adsure,
was an inadvertent error.
The fact remains that the ownership of Site No. 433 whether vested in the
plaintiff Respondent No. 1 or Venkata Reddy and B.S. Subba Rao is the core
question which would fall for determination of the learned Trial Judge.
Ordinarily this Court having regard to the fact that the appellant has raised substantial
constructions would have allowed her to complete the same but the fact remains
that she did not question the said order before this Court for a long time. The
application for grant of special leave was barred by limitation. In a situation
of this nature, ordinarily, the aggrieved party is expected to approach this
Court without any loss of time. We have noticed hereinbefore that in the
meanwhile the plaintiff Respondent No. 1 had sought for production of certain
original documents from the Authority which has been allowed.
The conduct of the appellant must be deprecated. Upon obtaining an interim
order from this court, she with a view to complete the construction so as to
make the situation irretrievable, not only did not file processes; even without
any rhyme or reason a set of complete paperbooks had not been served on the
Advocate for the plaintiff respondent. Although ad interim order passed by
this Court had nothing to do with the hearing of the suit, which in terms of
the direction issued by the High Court deserved expeditious disposal; an
application was filed through Respondent No. 2 herein for deferring the hearing
of the suit on the premise that the matter is pending before this Court.
Evidently, such an application was filed at the behest of the appellant.
is stated at the Bar that Mr. Nandkishore J., Advocate appeared before this
Court on 8.03.2007 on behalf of the appellant but the same learned Advocate had
appeared for Respondent No. 2 before the court below.
The very fact that the appellant and the said respondent have a common Advocate
also goes a long way to show that the said application must have been filed at
the instance of the appellants themselves particularly having regard to the
fact that Respondent No. 2 had transferred her right title and interest in favour
of the appellant herein.
Furthermore, no construction could be raised in view of the order of a Division
bench of this Court dated 21.06.2007. In that view of the matter, in our
opinion, interest of justice would be subserved if the said order is made
absolute. We would, however, direct the plaintiff Respondent No. 1 to furnish
security for a sum of Rs. 2,00,000/- (Rupees two lakhs only) within four weeks
from date so that in the event, the suit is dismissed and in the proceedings
the appellants prove that she has suffered any damages by reason of not being
able to raise any construction from the date till disposal of the suit, they
may be suitably compensated therefor.
The appeal is dismissed subject to the aforementioned directions with costs.
Counsels fee assessed at Rs. 25,000/- (Rupees twenty five only).