1 IN THE HIGH COURT OF KARNATAKA, BANGALORE DATED THIS THE 12 TH DAY OF AUGUST, 2014 BEFORE THE HON'BLE MR. JUSTICE ARAVIND KUMAR MISCELLANEOUS FIRST APPEAL No.5663 OF 2010 (CPC) BETWEEN: SRI.M.KRISHNAPPA S/O. LATE MUNISWAMAPPA RESIDING AT NO.2937/38/1 SERVICE ROAD, VIJAYANAGAR BANGALORE …APPELLANT (BY SRI.AMIT DESHPANDE, ADV.,) AND: 1. SRI.K.T.SRINIVAS AGED ABOUT 69 YEARS S/O. LATE KABADI THANASA 2. SRI K.S.GIRIDHARI AGED ABOUT 44 YEARS S/O. K.T.SRINIVAS 3. SRI.K.S.KRISHNAMURTHY AGED ABOUT 42 YEARS S/O. SRI.K.T.SRINIVAS 4. SRI.K.S.PADMANABHA AGED ABOUT 36 YEARS S/O. SRI.K.T.SRINIVASA 5. SRI.K.S.AMARNATH AGED ABOUT 36 YEARS S/O. SRI.K.T.SRINIVAS ALL ARE RESIDING AT # H-61 SULTAN PET, BANGALAORE 560 053.
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THE HON'BLE MR. JUSTICE ARAVIND KUMAR …judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/...HALAGE DEVARA HALLI V BLOCK BANGALORE – 560 039 10. SRI.R.SHANKARAPPA MAJOR S/O.
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IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 12TH DAY OF AUGUST, 2014
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
MISCELLANEOUS FIRST APPEAL No.5663 OF 2010 (CPC)
BETWEEN: SRI.M.KRISHNAPPA S/O. LATE MUNISWAMAPPA RESIDING AT NO.2937/38/1 SERVICE ROAD, VIJAYANAGAR BANGALORE …APPELLANT (BY SRI.AMIT DESHPANDE, ADV.,) AND: 1. SRI.K.T.SRINIVAS AGED ABOUT 69 YEARS S/O. LATE KABADI THANASA 2. SRI K.S.GIRIDHARI AGED ABOUT 44 YEARS S/O. K.T.SRINIVAS 3. SRI.K.S.KRISHNAMURTHY AGED ABOUT 42 YEARS S/O. SRI.K.T.SRINIVAS 4. SRI.K.S.PADMANABHA AGED ABOUT 36 YEARS S/O. SRI.K.T.SRINIVASA 5. SRI.K.S.AMARNATH AGED ABOUT 36 YEARS S/O. SRI.K.T.SRINIVAS ALL ARE RESIDING AT # H-61 SULTAN PET, BANGALAORE 560 053.
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6. SMT.H.LATHA AGED ABOUT 38 YEARS RESIDING AT # 95 B.E.M.L LAYOUT BASAVESHWARANAGAR BANGALORE – 560 079 7. SRI.M.HUCCHE GOWDA AGED ABOUT 60 YEARS S/O. MAREGOWDA RESIDING AT # 322 B.E.M.L. LAYOUT BASAVESHWARANAGAR BANGALORE – 560 079 8. SMT. NAGAMMA W/O. SRI.PUTTEGOWDA RESIDING AT NO.8 VIJAYANAGAR BANGALORE – 560 040 9. SMT.P.HANUMAKKA AGED ABOUT 38 YEARS W/O. G.H.RAMACHANDRA RESIDING AT @ 290/1 B.E.M.L. LAYOUT HALAGE DEVARA HALLI V BLOCK BANGALORE – 560 039 10. SRI.R.SHANKARAPPA MAJOR S/O. LATE RAMAKRISHNAPPA RESIDING AT KENCHANAHALLI BANGALORE – 560 039 11. SRI.DEVARAJU MAJOR RESIDING AT # 570 6TH A CROSS, 8TH MAIN HAL III STAGE BANGALORE – 08 12. SMT.KAMALAMMA AGED ABOUT 68 YEARS
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W/O. LATE HANUMANTHAPPA RESIDING AT MALLASANDRA DASANAPURA HOBLI BANGALORE NORTH TALUK 13. SMT.K.NIRMALA AGED 50 YEARS D/O. LATE MUNISWAMY RESIDING AT NO.128 V.R.LAYOUT, VIJAYANAGAR BANGALORE – 40 14. S.JAGADISH MAJOR S/O. LATE SANJEEVAIAH RESIDING AT NO.1483 11TH A CROSS 4TH MAIN ROAD, 2ND STAGE WEST OF CHORD ROAD BANGALORE 15. SRI.B.KRISHNAPPA AGED 65 YEARS S/O. BIDDAPPA RESIDING AT NO.11 DASAGOPANTHGALLI SUNKALPET BANGALORE – 22 16. K.NARASIMHA AGED ABOUT 37 YEARS S/O. B.KRISHNAPPA RESIDING AT NO.685 11TH CROSS, 4TH MAIN M.C. LAYOUT MAGADI ROAD BANGALORE – 23 17. SRI.HEMANTHA KUMAR AGED ABOUT 44 YEARS S/O. SRI.MADANLAL SUJI METAL INDUSTRIES 8TH CROSS, RIGHT SIDE MAGADI ROAD
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BANGALORE – 23 18. SRI.K.SRINIVASA AGED ABOUT 40 YEARS S/O.B.KRISHNAPPA RESIDING AT NO.685 11TH CROSS, 4TH MAIN M.C.LAYOUT, VIJAYANAGAR BANGALORE – 40 19. SRI.T.CHANDRASHEKAR AGE 48 YEARS S/O. THRUVANGADA SHETTY NO.27, 8TH CROSS MAGADI ROAD BANGALORE – 23 20. SMT.ANURADHA AGE 49 YEARS W/O. SRI.T.CHANDRASHEKAR RESIDING AT NO.27, 8TH CROSS MAGADI ROAD BANGALORE – 560023
… RESPONDENTS
(BY SRI.SREEVATSA, SR.COUNSEL AND SRI.H.S.SOMNATH, ADV., FOR R1- 5; SRI. SHASHIKIRANSHETTY, SR.COUNSEL AND SMT. FARAH FATHIMA, ADV., FOR R7 AND 14; SRI. A.HANUMANTHAPPA, ADV., FOR R8; SRI.RAGHUNATH, ADV., FOR R19; R6, 10, 12, 16, 17 AND 20 ARE SERVED NOTICE TO R9, 13, 15 & 18 ARE DISPENSED WITH; APPEAL ABATED AGAINST R11 V/O DT.21.11.13)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r)
R/W SEC. 151 OF CPC AGAINST THE ORDER DATED
29.5.2010 PASSED ON IA.NO.1 IN O.S.NO.2000/2004 ON
THE FILE OF VII ADDITIONAL CITY CIVIL JUDGE,
BANGALORE, ALLOWING IA NO.1 FILED UNDER ORDER
39 RULE 1 AND 2 OF CPC FOR T.I.
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THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Controversy in this appeal revolves around grant
of temporary injunction in favour of plaintiffs by
allowing I.A.No.1 and restraining defendant Nos.1, 8, 10
to 17, their agents, servants or anybody on their behalf
claiming through them from interfering with peaceful
possession and enjoyment of suit property by plaintiffs
and directing them not to put up any construction over
suit schedule property during pendency of the suit.
These defendants have also been directed not to put up
any permanent structure in the suit property till further
orders. 17th defendant being aggrieved by said order has
preferred present appeal.
2. Factual matrix in brief leading to filing of
this appeal can be crystallized as under;
Plaintiffs claiming to be owners of property bearing
Sy.No.65 (Old No.23) measuring 6 acres 30 guntas
situated at Mylasandra Village, Kengeri Hobli, Bangalore
South Taluk (hereinafter referred to as “suit property”
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for brevity) sought for an order of perpetual injunction
against defendants from interfering with their
possession and they are also seeking for a decree that
all acts done by defendant Nos.1 to 16 are beyond the
scope of General Power of Attorney dated 15.10.1992 as
without authority and ab-initio null and void,
contending interalia that said property was purchased
by first plaintiff under a registered sale deed dated
22.08.1962 and plaintiffs are in actual and peaceful
possession and enjoyment of the same. They also
contend that second defendant had approached
plaintiffs to purchase suit property and an agreement of
sale was entered into between plaintiffs and second
defendant on 27.01.1991 and they further pleaded that
plaintiffs have incurred heavy expenditure for
construction and by paying necessary conversion
charges and betterment charges to concerned
departments. They also specifically pleaded that
defendant Nos.1 to 16 had approached them to execute
a General Power of Attorney in their favour for purposes
of obtaining permission from Government Departments
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as they are not aware of legal procedures and
obligations involved and in this regard, they executed a
General Power of Attorney on 15.10.1992 for the
purposes specifically mentioned in said General Power
of Attorney. They further contended that on account of
defendants not fulfilling the obligations cast on them
under General Power of Attorney and as they had
abandoned powers granted to them and agreement
executed in their favour have not been acted upon.
They also contended that defendants have no manner of
right, title or interest over suit property as such, they
questioned acts of defendant Nos.1 to 16 for having
executed sale deed in favour of 17th defendant in the
month of May 2003 on the ground that defendant Nos.
1 to 16 have no right to execute such documents.
Plaintiffs further contended that immediately thereafter,
they got issued a legal notice on 06.08.2003 notifying
defendants not to interfere with their possession and
untenable reply was sent by defendant Nos.1 to 16.
They further contended that documents of sale in favour
of 17th defendant is void ab-initio not binding, as such,
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they contended that they terminated or revoked General
Power of Attorney dated 15.10.1992 executed by them
in favour of defendant Nos.1 to 16 by issuance of notice
of revocation and also by deed of revocation on
22.04.2004 and by getting it duly registered in Sub-
Registrar office, Kengeri. They further contend that
after such revocation defendants are attempting to
interfere with plaintiffs possession and also attempting
to put up construction, foundation etc., and hence they
being unable to prevent the mischief of defendants, they
sought for permanent injunction and in aid of main
relief, they sought for grant of temporary injunction.
3. On service of suit summons defendant Nos.4
and 6 appeared before Trial Court and filed their written
statement denying averments made in the plaint. They
specifically contended that subsequent to execution of
sale agreement dated 27.01.1991 plaintiffs had also
executed an agreement of sale and General Power of
Attorney on 15.10.1992 and these two documents came
into existence on the same day. They also contended
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that they have paid necessary conversion charges to the
jurisdictional revenue authorities including betterment
charges for conversion of suit property from agricultural
to non-agricultural – residential purposes. They also
further pleaded that as per registered agreement of sale
deed dated 15.10.1992, plaintiffs have received full sale
consideration from defendant Nos.1 to 16. They
claimed to have taken possession of suit property from
plaintiffs. They also specifically contended that
agreement of sale dated 15.10.1992 and General Power
of Attorney of even date are two contemporaneous
documents having came into existence on the same day
and Power of Attorney executed by plaintiffs is an
agency coupled with interest. Hence, on these grounds
and as pleaded in the written statement, they sought for
dismissal of suit. They adopted the written statement as
objections to I.A.No.I.
4. 17th defendant who is a subsequent
purchaser and who is appellant in this appeal had also
appeared on suit summons being served and has filed
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his written statement denying averments made in the
plaint and contended that he is a bonafide purchaser
for value without notice. It was contended that
agreement of sale dated 15.10.1992 and Power of
Attorney of even date has been duly executed by
plaintiffs in favour of 1st defendant and by virtue of said
authority he along with defendant Nos.2 to 16, had
executed a sale deed dated 22.05.2003 in his favour
and as such, revocation of Power of Attorney
subsequently on 22.02.2004 would have no effect on
sale transaction entered into between defendant Nos.1
to 16 on one hand and 17th defendant on the other
hand. Hence, for reasons pleaded in his written
statement, 17th defendant sought for dismissal of suit.
Defendants also filed a Memo that written statement
filed by them be construed as objections to application
I.A.No.1 filed by plaintiffs seeking temporary injunction.
5. Trial Court after considering the pleadings of
parties and after appreciating the contents raised by
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respective learned advocates appearing for parties
formulated following points for its consideration.
(i) Whether the plaintiffs have made out a
strong prima facie case?
(ii) In whose favour the balance of
convenience lies?
(iii) Whether the plaintiff is entitled for
temporary injunction?
(iv) What order?
6. After evaluating pleadings and upon
deliberating contentions raised by learned advocates,
Trial Court allowed I.A.No.1 and granted an order of
temporary injunction in favour of plaintiffs and at the
same time has also put the plaintiffs also on terms
namely has directed plaintiffs also should not to put up
any construction over suit property during pendency of
suit. In other words, it has directed both parties to
maintain status-quo. Reasons assigned by Trial Court
for granting an order of temporary injunction in favour
of plaintiff is that conversion order dated 17.07.1992
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which defendants as well as plaintiffs produced relating
to suit property evidencing conversion of said land from
agricultural to non-agricultural-residential purposes is
in the name of plaintiffs and as such, it has to be
presumed that plaintiffs have applied for conversion of
land vide Paragraph 16 of the order under challenge.
Trial Court also has held that there is no prima facie
material to show that defendants have paid entire
consideration to plaintiffs as agreed to under Agreement
of Sale dated 17.01.1991 and as such, it accepted the
say of plaintiffs that sale transaction is incomplete and
still defendants are due to plaintiffs and balance
amount of Rs.23,18,535/- is payable by defendant Nos.
2 to 16 and it is prima facie probable and acceptable
plea. Trial Court also found that Clause 8 of General
Power of Attorney dated 15.10.1992 does not specifically
authorize or empower defendants 2 to 16 to alienate or
sell or encumber suit property, as such, it has held
there is no specific and valid authority under General
Power of Attorney in favour of defendant Nos.1 to 16 to
sell the property. It also accepted the plea put forward
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by the plaintiffs that General Power of Attorney dated
15.10.1992 has also been revoked by a registered
document on 22.02.2004 which is binding on
defendants. Trial Court also held that sale transaction
between defendants 1 to 16 and 17th defendant
has taken place after revocation of GPA i.e., on
22.02.2004 and after filing of the suit in March 2004
and validity thereof will have to be considered at the
time of trial and as such it had granted an order of
temporary injunction. It found that construction is yet
to commence and as such, it has held at Paragraph 28
of its order that it would be appropriate and proper to
direct both parties to maintain status-quo by
concluding that there is a prima facie case and balance
of convenience in favour of plaintiffs. Hence, it has
allowed the application for grant of temporary
injunction vide order dated 29.05.2010 which is under
challenge in this appeal.
7. I have heard the arguments of Sri.Amit
Deshpande, learned counsel appearing for appellant,
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Sri.Sreevatsa, learned Senior Counsel appearing on
behalf of Sri. H.S.Somnath for respondent Nos.1 to 5
and Sri.Shashikiran Shetty, learned Senior Counsel
appearing on behalf of respondent No.7 and 14. Other