http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

CASE NO.: Appeal (civil)  4886 of 2007

PETITIONER: Shridevi & Anr

RESPONDENT: Muralidhar & Anr

DATE OF JUDGMENT: 12/10/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T  [Arising out of  SLP (Civil) No. 4931 of 2007] S.B. SINHA, J :          1.      Leave granted.          2.      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.

3.      Contesting defendant in the suit is Appellant No. 1 before us.   Principally, 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.

4.      The 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.

5.      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 requisite charges.

       A deed 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.   Allegedly, 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.   

6.      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  following reliefs:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

(i)     directing them not to use the Borewell put up in site No. 433 for  any purpose for all time to come. (ii)    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.

7.      Plaintiff- 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 \026 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 \021No Encumberance Certificate\022 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:

(i)     Nagamma w/o Javarayappa                 -       2 Acre 9 Are (ii)    Venkata Reddy and B.S. Subba Rao                -       1 Acre 16 Are (iii)   Kapinayya s/o Nanjundaiah                       -       1 Acre 4 Are (iv)    A.R. Upadhyaya                                  -       90 ft. x 50 ft.

8.      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.   

9.      The 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 No.  15/1.   

10.     Contention of the plaintiff is that the aforementioned Site Nos. 433,  434 and 435 were not the subject matter of the acquisition proceedings.

11.     An 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 \026 Respondent No. 1 filed MFA Nos. 8777 and 8939 of  2006 before the Karnataka High Court.   

12.     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:

\023Issue notice on the application for condonation of delay  as well as on the Special Leave Petition returnable within  four weeks.         It is 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.\024   13.     Before embarking upon the rival contentions of the parties, we may

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

notice certain disturbing features.   

       Although 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  \026 On \026 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.   

14.     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  urgency.   

15.     Although the High court directed  expeditious disposal of the suit by  the Trial Court, the defendant \026 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.

16.     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.   

17.     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.

18.     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 plaintiff\022s 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 acquired.  

19.     The Authority appears to have been impleaded as a party to the suit.

20.     It is stated that the plaintiff had filed an interlocutory application  calling upon the Authority to produce the documents in original and the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

same had been allowed by an order dated 23.02.2007.

21.     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. 22.     In 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.   Grant 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]

23.     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.   Consequently, Respondent No. 2 could not have transferred her right, title  and interest in favour of the appellant herein.   24.     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 \026 Respondent No. 1 herein had prayed for raising any  construction on Site No. 433 or not may not strictly arise for consideration.

25.     We 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.   

26.     The fact remains that the ownership of Site No. 433 whether vested in  the plaintiff \026 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.         27.     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 \026 Respondent No. 1 had  sought for production of certain original documents from the Authority  which has been allowed.   

28.     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 \026 respondent.  Although ad  interim order passed by this Court had nothing to do with the hearing of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

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.   

29.     It 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.

30.     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.

31.     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 \026 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.

32.     The appeal is dismissed subject to the aforementioned directions with  costs.  Counsel\022s fee assessed at Rs. 25,000/- (Rupees twenty five only).