O. S. Nos. 8116/99 & 7973/99.

IN THE COURT OF THE VI ADDL. CITY CIVIL JUDGE BANGALORE.
O.S. No. 6003 of 1999.

Our Comments : This is only Judgment & Judge we have come across who is above Board to be corrupted ; amongst all Judgments / Judges ( involved in Judicial Layout ).

High Lights of Judgment (interim order) :
1) It is also evident from the loan application submitted to the High Court by the defendant that they have obtained loan for the construction for their house. All these documents produced by them will come to their help only when they are able to show that Sy. No. 98/2 or 98/7 belonging to the plaintiff have been acquired by the society.
2 ) Without acquiring the said Sy. No. the society gets no right to execute the sale-deed in respect of sites allotted to defendants 2 and 3 formed out of said Survey No. 98/7.
3 )Where as the defendants 2 and 3 have failed to produce any documents much less a scrap of paper to show that they have got right, title interest or possession over the Sy. No. 98/7 from the Society had any kind of right over the same

4 ) Even in respect of the sites allotted to Defendants 2 and 3, no documents such as BDA plan or survey sketch have been produced to locate and identify the same. [Flash Movie ]
5 ) Keep a copy of this order in O. S. 7973/99.

Fraud Judges having failed to get illegal order , got this case transferred to another Judge Mr.A.T. Munolli ; who happens to member beneficiary of Fraud Judges Society & got a Fradulent Decree legalizing Land Grabbing by Judges & so also Fraudulantly High Court Approved Loan got legalized.[015.01][040.16][040.02 ]


Dated this the 10th day of January. 1999.

Present : Sri. Pradeep D. Waingankar, M. A., LL. B.,
VI Addl. City Civil Judge, Bangalore.

O.S. No. 8116/99.

Plaintiff:

Sri. Muniveeranna, Aged about 60 Years, S/o late Nanjappa,
Residing at Dwarakanagar Jala Hobli, Bangalore North Taluk.

-Vs-

Defendants:

[1] Deleted.
[2] Sri. M.S. Hegde Nagre, Aged about 48 Years, S/o late Samba Thimmanna Hegde,
Civil Judge, Working in Lokayuktha, M. S. Building, Bangalore.
[3] Sri. B. Sreeram Reddy, Aged About 49 Years, S/o Chinnabyanna,
Residing at No. C. 22, K.P.W.D. Quarters, Jeevan Bhimanagar, Bangalore - 560 075.

O. S. No. 7973/99.

Plaintiff:

M. S. Hegde Nagare, Aged about 49 years, S/o Late Samba Hegde,
Civil Judge, [Senior Division] Presently working as: O.O.D. Deputy Registrar,
Karnataka Lokayukta-DRE-3, And Residing at Block No. J2D H. No. 601,
National Games Housing Complex, Koramangala. Bangalore- 560 047.

-Vs-

Defendants:

[1] M. Muniyappa. Age: Major, S/o. Junjappa, Residing at: Allalasandra Village,
GKVK Post, Yelahanka Hobli, Bangalore North Taluk, BANGALORE.

[2] Muniveeranna, Age; Major, S/o. Nanjappa, Residing at: Allalasandra Village,
GKVK Post, Yelahanka Hobli, Bangalore North Taluk, BANGALORE.

[3] The Karnatka State Judicial Department Employees' House Building Co-operative Society Limited,
High Court Building, BANGALORE -560 001, Represented by its Secretary.


ORDERS ON I. A. I. & V IN O. S. No. 8116/99
ORDERS ON I. A. II IN. O. S. No. 7973/99.

[1] O. S. No. 8116/99 and O. S. No. 7973/99 arise in respect of the same subject-matter between the same parties and therefore, for the sake of convenience, both the suites are clubbed together and a common order is passed on I.A.I. and I.A.V. in O. S. No. 8116/99 and order on I.A.II in O. S. No. 7973/99 .

[2] I.A.I. in O.S. No. 8116/99 is an application filed by the plaintiff-Muniveeranna U/o 39, Rules 1&2 of C.P.C. against the defendants restraining them from interfering with the peaceful possession and enjoyment of the suit schedule lands bearing Sy. No. 98/7 of Allalasandra Village and proceeding with any constructions over the same.

[3] I.A. No. V in O.S. 8116/99 is an application filed by the defendant-3 Sri. P. Sreeram Reddy, against the plaintiff-Muniveeranna restraining him from obstructing with the construction of the house in site No. 1773 in the layout in several Sy. Nos. at Allalasandra, by the defendant-3.

[4] I. A. II in O. S. No. 7973/99 is an application filed by the plaintiff Sri. M. S. Hegde Nagre U/o. 39, Rules land 2 of C.P.C. restraining the defendants M. Muniyappa and Muniveeranna from interfering with the plaintiff's peaceful possession and enjoyment of his schedule site bearing No. 1755 "several" in the layout in/Sy. Nos. at Allalasandra.

All these aforesaid I. As are supported by the affidavits.

[5] It is the case of the Plaintiff-Muniveeranna in O. S. 8116/99 that, he is the absolute owner in possession and enjoyment of Sy. No. 98/7 of Allalasandra Village measuring 1 acre 7 guntas of land. the defendants Sr. M.S. Hegde Nagre and P. Sreeram Reddy have absolutely no right of any kind over the same. Nor the said Sy. No. has been acquired by the Karnataka State Judicial Department Employees' House Building Co-operative Society at any time so as to allot the same to its members viz., defendante 2 and 3 nor the possession of the said Sy. No. was handed over to the Society or its members at any time. The defendants 2&3 claim to be the member of the Karnataka Judicial Department Employees House Building Co-operative Society Ltd., and that being embers, they have been allotted site No. 1755 and 1773 respectively in Sy. No. 98/7 belonging to the plaintiff which is one of the Sy. Nos. which forms a layout wherein sites have been formed and they are now proceeded with the construction of their residential house over the respective sites allotted to them by the society. The plaintiff-Muniveeranna without there being a right over the sites allotted to them now interfered with the peaceful possession and enjoyment of these sites by the defendants 2 and 3 and obstructed them in proceeding with the construction of their houses over the same. Therefore, the defendants 2 and 3 have also prayed for an order of temporary injunction restraining the plaintiff-Muniveeranna from interfering with their peaceful possession and enjoyment and construction over the aforesaid sites.

[6] I have heard both the learned counsel for the plaintiff and the defendants at length. Upon hearing the learned counsel for the plaintiff and defendants 2 and 3, and upon consideration of the material placed on record, by the parties to the suit, the points that would Aries for my determination for the disposal of the interim applications are as follows:-

POINTS:

[1] Whether the plaintiff-Muniveeranna has made out a prima-facie case for the grant of T.I against the defendants 2 &3 ?
[2] Whether the balance of convenience does lie in favour of the plaintiff - Muniveeranna ?
[3] Whether the plaintiff-Muniveeranna will be put to great loss and hardship if T.I is not granted ?
[4] Whether the defendants 2 & 3 have made out a prima-facie cse in their favour ?
[5] Whether the balance of convenience lies in favour of the defendants 2 and 3 ?
[6] Whether the defendants 2 & 3 will be put to great hardship if I. A. II & 7 are not allowed ?
[7] What order ?
[8] My finding on the above points are as follows:-

Point No. 1:- In affirmative
Point No. 2:- In affirmative
Point No. 3:- In affirmative
Point No. 4:- In affirmative
Point No. 5:- Does not arise for consideration.
Point No. 6:- Does not arise for consideration.
Point No. 7 :- As per final order,

For the Following:-

REASONS

[8] It is the case of the plaintiff that, he is the absolute owner in possession and enjoyment of the Sy. No. 98/7 of Allalasandra measuring 1 acre and 7 guntas. The defendants 2 and 3 without there being any right over the same, trespassed over the same and started construction which made the plaintiff to file the suit for permanent injunction and to move the instant application at I. A. I. to restrain the defendants 2 and 3 from proceeding with the construction over Sy. No. 98/7. The defendants claim to be the allottees of site No. 1755 and 1773 by the Society and they were put in possession of the same and after obtaining necessary licence, they have undertaken construction over the same.. The plaintiff without there being any right over the said sites unnecessarily interfering and obstructing them in their constructions.

The learned counsel for the plaintiff has vehemently argued before me that, all the records show the plaintiff is the owner in actual possession of the Sy. No. 98/7. The said Sy. No. has not been acquired at any time by the Society. Nor the possession was handed over to the society or any of its members by the plaintiff at any time. Therefore, according to the learned counsel, the plaintiff has got a prima-facie case, the balance of convenience lies in favour of the plaintiff and if the defendants 2 and 3 who have absolutely no right over the Sy. No. 98/7 are not restrained from proceeding with the construction over the said Sy. No. the plaintiff would be put to great hardship and irreparable loss which cannot be compensated in terms of money. Therefore, the learned counsel for the plaintiff has prayed for the grant of T.I against the defendants 2 & 3. For contra, the learned counsel for defendants 2 & 3 have vehemently argued before me that, the suit filed by the plaintiff is not at all maintainable, it is bad for non-joinder of necessary parties. The plaintiff has not made out a prima-facie case /nor the balance of convenience lies in his favour. On the other hand, defendants 2 and 3 have got a prima-facie case, the balance of convenience lies in their favour, they have already undertaken construction by obtaining huge loan and if T. I. order is granted at this stage, they would be put irreparable loss which cannot be compensated in terms of money . For all these reasons, the learned counsel for the defendant-2 and 3 have prayed for the rejection of the I.A.I filed by the plaintiff.

I have perused the entire documents produced by the plaintiff and defendants No. 2 & 3.

The plaintiff has produced R.T.C. for the year 1999 which shows that the plaintiff is the owner in possession of the said Sy. No. 98/7. According to the plaintiff, the Doddaramaiah was the original owner of Sy. Nos 98/2 and 98/7 of Allalasandra. He sold Sy. No. 98/7 to one Ameena Bi by a Regd., sale-deed on 5-7-1964 wherein the correct boundary of Sy. No. 98/7 were given. Where as in the sale-deed the Sy. No. has been wrongly mentioned as 98/2 instead of 98/7. Similarly Doddaramaiah sold Sy. No. 98/2 to Muniyappa by a Regd. Sale-deed Date: 28-2-1968 wherein the boundaries of Sy. No. 98/2 were clearly shown. But, inadvertently the Sy. No was shown as 98/7 instead of 98/2. Ameena Bi sold Survey No. 98/7 of which she was the owner to Muniveeranna the plaintiff by a Regd. Sale-deed dated: 3-1-1974. Wherein the correct boundaries as mentioned in the sale-deed of Ameenabi were incorporated. But the wrong mentioning of Sy. No. 98/2 instead of 98/7 continued. Both Muniyappa and Muniveeranna did not notice the mistakes in the Sy. Nos. till 1986 when in respect of acquisition of Sy. No. 98/2, a notice was received by Muniveeranna from the Land Acquisition Officer. At that time, both Muniyappa and Muniveeranna noticed the mistake and by consent Muniyappa was allowed to obtain compensation in respect of Sy. No. 98/2 by Muniveeranna though the said Sy. No. was standing in the name of Muniveeranna due to mistake. At that time, Muniyappa after the receipt of compensation, executed an irrevocable Tower of Attorney in favour of Muniveeranna in respect of Sy. No. 98/7 and thereafter, on 17-3-1999 he executed a Rectification Deed in favour of Muniveeranna the plaintiff though it is styled as a sale-deed. On the strength of the said Deed , Date: 17-3-1999 the name of the Muniveeranna came to be entered in R.T.C in respect of Sy. No. 98/7 and that throughout he was in actual possession and enjoyment of the said Sy. No. 98/7 ever since the date of its purchase from AmeenaBi on 3-1-1974.

The defendants have produced an allotment letter to show that the said sites were allotted to them by the Karnataka State Judicial Department Employees House Building Co-operative society Ltd.,. The allotment letter speaks about that all the Sy. No. acquired by the Society of Allalasandra village. From the said allotment letter, it is clear that the Sy. No. 98/7 or 98/2 were not at all acquired by the Society. The Sy. Nos. were acquired some where in 1992. According to the defendant, out of all the Sy. Nos. acquired, layout, was formed and then in the said layout, the sites were allotted to defendants 2 and 3. The defendants have also produced the sale-deed executed by the Society in their favour. Even in the said sale-deed, the Sy. Nos. acquired by the Society were given. But Sy. No. 98/2 and 98/7 find no place. The other documents produced by the defendants 2 and 3 are the possession certificates to show that the possession certificate was given to them by the Society. Thereafter, their name came to be entered. They have produced the khata in respect of the sites allotted to them. Thereafter, it appears they have obtained building licence from the competent authority which has been produced by them to undertake construction in the respective sites. They have also produced building plan, tax paid receipts, Encumbrance certificate in respect of their sites. It is also evident from the loan application submitted to the High Court by the defendant that they have obtained loan for the construction for their house. All these documents produced by them will come to their help only when they are able to show that Sy. No. 98/2 or 98/7 belonging to the plaintiff have been acquired by the society. They have utterly failed to prove the same. On the other hand, the documents produced by them go to show that the Sy. No. 98/7 has not been acquired by the Karnataka State Judicial department Employees' House Building Co-operative Society Ltd.,. Without acquiring the said Sy. No. the society gets no right to execute the sale-deed in respect of sites allotted to defendants 2 and 3 formed out of said Survey No. 98/7. It is the specific case of the plaintiff that, under guise of the allotment of sites, the defendants 2 & 3 have trespassed and proceeded with construction in Sy. No. 98/7. There is no doubt that neither the society nor the defendants 2 and 3 are in no way concerned to said Sy. No. 98/7 belonging to the plaintiff, the plaintiff has produced certified copy of the plaint in O. S. No. 6003/99 filed by the society for specific performance of the agreement executed by Muniyappa on 22-9-1989 in respect of the Sy. No. 98/7. As I have already stated they Sy. No. 98/7 was always in possession of the plaintiff. He had purchased the same from Ameena Bi by a Regd., sale-deed which is produced by the plaintiff and by mistake, the Sy. No. was mentioned as 98/2 and so far as the Muniyappa's sale-deed in concerned, the Sy. No. was wrongly mentioned as 98/7 instead of 98/2. The plaintiff has also produced the copy of the agreement dated: 22-12-1989 from the recitals of the said agreement, it is clear that the possession of the Sy. No. mentioned in the said agreement was not at all handed over to the society. The Boundaries of Sy. No. 98/7 shown in the agreement are quite different from the boundaries of sy. No. 98/7 shown by the plaintiff in plaint schedule. Therefore, the boundaries shown in the agreement strengthens the case of the plaintiff that wrongly at the time of purchase of the Sy. No. 98/7 it was mentioned in the sale-deed as Sy. No. 98/2. Now that the Society filed a suit for Specific Performance of the said agreement itself go to show that they have no document of title so far as Sy. No.98/7 is concerned. As such, neither the defendant-2 nor the defendant-3 can derive any right, title or interest of any kind over the Sy. No. 98/7 or any site formed out of said Sy. No. 98/7. Therefore, any site formed out of Sy. No. 98/7 or any sale-deed executed in respect of the same is non-est.

The learned counsel for defendant-2 & 3 in support of their arguments placed reliance on the following decisions:-

[1] AIR 1959 Mysore 75
[2] AIR 1963 Punjab 104
[3] AIR 1952 Bombay 56
[4]AIR 1932 Bombay 247
[5] AIR 1975 KLJ 425
[6] ILR 1992 Karnataka 3773
[7] 1984 (1) K.L.J. 365.

I have gone through the ratio decided laid down in all the aforesaid decisions cited by the learned counsel for the defendants 2&3. All these decisions speak about the principles to be followed while granting or rejecting an order of temporary injunction. From reading all these decisions, it is evident that in order to seek an order of T.I, the parties must make out a prima-facie case, balance of convenience lie in their favour, more hardship would be caused if the T.I order is not granted. It is also evident from the above decisions that it is only when interference is absolutely necessary to protect the parties from that species of injury which the court call irreparably.

From the documents placed on record, both by the plaintiff and the defendants, I am satisfied that the plaintiff has made out a prima-facie case for the grant of injunction so far as the preservation of his property bearing Sy. No. 98/7 is concerned. Where as the defendants 2 and 3 have failed to produce any documents much less a scrap of paper to show that they have got right, title interest or possession over the Sy. No. 98/7 from the Society had any kind of right over the same. The documents placed on record show that the defendants have no semblance of right over the Sy. No. 98/7. Therefore, the defendants cannot question the right of the plaintiff to the suit schedule property.

No doubt, the learned counsel for the defendant 2 and 3 have vehemently argued that the suit of the plaintiff is not maintainable as it is hit by the provisions of Order 1 Rule 13 of C.P.C. as the suit is bad for non-joinder of necessary parties. In other words, the plaintiff has not impleaded the Society as the party to the suit. As rightly contended by the learned counsel for the plaintiff, no relief are claimed against the society by the plaintiff in the suit. Moreover, the instant suit is not a title suit. It is a simple suit for permanent injunction. If at all the Society had any right in Sy. No. 98/7, and the defendant 2 and 3 ought to have taken such a contention. Therefore, there is no substance in the contention taken by the defendant 2 and 3 that the suit is bad for non-joinder of Society as necessary party. In my opinion, since the instant suit is a simple suit for injunction, it cannot be said that is it not maintainable. After all the rules and procedure are hand made of justice and the rules, procedure, technicalities should not be allowed to come in the way in remedying the justice to the parities if they are otherwise entitled to get the same. Hence material placed on record by the plaintiff which speak about the clear and unquestioned title of the plaintiff to the suit schedule Sy. No. 98/7 takes me to give a finding that the plaintiff has made out a prima-facie case. In other words, the defendants 2&3 have failed to make out a prima-facie case for the grant of injunction in their favour. Accordingly point No. 1 is answered in affirmative and point No. 4 is answered in negative.

9 ] Point Nos. 2 & 3 :-

While answering point Nos. 1 & 4, I have arrived at a conclusion that the defendants 2&3 have failed to make out a prima-facie case for the grant of injunction in their favour. Therefore, the consideration of the there two aspects of balance of convenience and the comparative hardship in case of the applications for grant of injunction filed by the defendant 2 and 3 does not arise.

It is an admitted preposition of law that, in order to seek an equitable order of temporary injunction, it is not sufficient for the plaintiff to make out a prima-facie case. Apart from prima-facie case the plaintiff should also prove that the balance of convenience lies in his favour and if the defendants are not restrained by means of an ad-interim injunction order, great hardship and irreparable injury would be caused to the plaintiff which cannot be compensated in terms of money. In the instant case, the plaintiff has produced all the necessary document which speak the clear and unquestionable title to schedule Sy. No. 98/7 of the plaintiff. The documents produced by the defendants such as allotment letter and sale-deed executed by the Society in their favour in respect of the sites make it very clear that, Sy. No. 98/7 of the plaintiff has not been acquired by the society. Therefore, the society had no right to execute any document in favour of the defendant 2 and 3 in respect of sites formed and allotted to defendants 2 and 3 out of Sy. No. 98/7 . It is the specific case of the plaintiff that defendant have proceeded with the construction by trespassing over the schedule land of the plaintiff. The said Sy. No. is a pocket land and the documents placed on record reveal that no steps have been taken by the Society to acquire Sy. No. 98/7 though the surrounding Sy. Nos. have been acquired. No doubt, the defendants 2 & 3 have taken huge amount of loan in order to construct their house and definitely they would be put to some hardship if they are restrained from proceeding with the construction. But if they are not restrained from proceeding with the construction which according to the plaintiff is in Sy. No. 98/7, hardship that would be caused to the plaintiff will be much more than the hardship that is caused to the defendants 2 and 3. The defendants 2 and 3 have no semblance of right over Sy. No. 98/7. Even in respect of the sites allotted to Defendants 2 and 3, no documents such as BDA plan or survey sketch have been produced to locate and identify the same. The defendants 2 and 3 have not produced any documents to locate their sites and out of which Sy. Nos. they were formed. Layout plan has not been produced. Under such circumstances, if they are not restrained from proceeding with the construction over a land for which they are in no way concerned, the plaintiff would be put to great hardship and lose and that it will lead to multiplicity of proceedings. Even presumming for a while that, there is a dispute in respect of Sy. No. 98/7 as a suit filed by Society for specific performance at O. S. 6003/99 is pending consideration in that case, there is a need to maintain statue-quo in respect of Sy. No. 98/7. In other words, neither the plaintiff nor the defendants should be allowed to go for construction over the same. In this connection, the ratio laid down in the decision cited by the learned counsel for the plaintiff reported in AIR 1983 Supreme Court page 742, which reads as under, is rightly applicable to the facts of this case:-

" When there is a dispute regarding identity of the land injunction not to put up construction to be issued in respect of entire land since if injunction is not granted situation might become irreversible by the time the dispute is decided.".

In addition to that, the learned counsel for the plaintiff has also placed reliance on order passed by the Hon'ble High Court in M.F.A.No. 9/98 clubbed with 101/98 in respect of the adjacent Sy. No. 92/2 whereby the Hon'ble High Court ordered to maintain status quo. Looking from any angle, the balance of convenience lies in favour of the plaintiff and more hardship would be caused to the plaintiff if the defendants are not restrained from proceeding with the construction. Therefore, the point Nos. 2&3 are answered in affirmative and point Nos. 5 & 6 in negative.

[10] In view of my discussions and my findings on the above points, I proceed to pass the following:-

O R D E R

I. A. I filed U/o. 39, Rules 1 & 2 of C. P.C. bythe plaintiff-Muniveeranna is hereby allowed. The defendants 2 and 3 are hereby restrained fro putting up or proceedings with any construction over the suit schedule property bearing Sy. No. 98/7 till the disposal of the suit.

I.A.V filed by the defendant-3 Sri. P. Sreerama Reddy U/o, 39, Rules 1 & 2 of C.P.C. is hereby dismissed.
I. A. II filed by the plaintiff Sri. M. S. Hegde Nagre in O. S. No. 7973/99 U/o. 39 Rules 1 & 2 of C.P.C. is hereby rejected.

Keep a copy of this order in O. S. 7973/99.

[ Dictated to the Judgment-Writer, transcribed by her, pronounced by me in open court on this the 10th day of January, 2000. ]

[ Pradeep D. Waingankar ]

VI Addl. City Civil Judge, Bangalore.

S C H E D U L E

1.03 ACRES OF LAND IN Sy. No. 98/7 of Allalasandra village, Yelahanka Hobli, Bangalore North Taluk with the following boundaries:-

East by: Land of Narayana Reddy son of Thimmareddy in Sy. No. 92/8;
West by: Land of Anjinappa now acquired for the 1st-defendant [Sy. No. 98/9 ];
North by: Land of Ramakka now acquired for 1st defendant [ Sy. No. 98/6 ];
South by: Land of Narayana Reddy son of Thimmareddy in Sy. No. 98/8.

-Signed-

[ P. D. Waingankar ]

10-01-2000.
VI ACCJ : BANGALORE

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