IN THE HIGH COURT OF KARNATAKA AT BANGALORE

R.F.A. NO._________OF 2023

BETWEEN:

Sri.Suresh Kumar and Anr ...PLAINTIFF

AND:

Sri. K.C.Ashwathanarayana Setty and Ors ...DEFENDANT

APPLICATION UNDER ORDER 39 RULE 1 AND 2 R/W SECTION

151 OF THE CODE OF CIVIL PROCEDURE

That for the reasons stated in the accompanying affidavit the

Plaintiffs/Appellants pray that this Hon’ble Court be pleased to grant an
ex-parte order of ad-interim temporary injunction against the Defendant
No.1/Respondent No.1, restraining him, either through himself, his
agents, servants or anybody claiming under him from changing the
nature of the Schedule Property, pending disposal of the above appeal,
in the interest of justice and equity.

SCHEDULE PROPERTY
All that piece and parcel of the Site No.7, part of the land in Survey
No.24/3, measuring East to West 40 feet and North to South 60 feet
which is later on a part of land in Survey No.24/4, Pattanagere Village,
Kengeri Hobli, Bengaluru South Taluk, to which Defendant No.1 asserts
site No.124, which is bounded on:
East by: Site No.8 (alleged Site No.125)
West by: Site No.6 (alleged Site No.123)
North by: 40 feet Road
South by: Site No.10 (alleged Site No.10)

PLACE: BANGALORE ADVOCATE FOR APPELLANT

DATE : SHARATH S GOWDA
 IN THE HIGH COURT OF KARNATAKA AT BANGALORE

R.F.A. NO._________OF 2023

BETWEEN:

Sri.Suresh Kumar and Anr ...PLAINTIFF

AND:

Sri. K.C.Ashwathanarayana Setty and Ors ...DEFENDANT

AFFIDAVIT

I, Sri.Prabhu Uddi, S/o Late Doddabasappa Uddi, Aged about 77 years,

R/at No.4, “Hombal”, Chalukya Nagara, Nagarabhavi Road, Bengaluru-
560072, do hereby solemnly affirm and state on oath as under:

1. I state that I am the Power of Attorney Holder of the Appellants in

the above case; as such I am well aware of facts and
circumstances of the case. Hence, I am swearing to this affidavit.

2. I state that the averments made in the appeal memorandum may

kindly be read as part and parcel to this affidavit, to avoid
repetition of the facts.

3. I state that the Appellants/Plaintiffs being aggrieved by the order

dated 14.12.2022 passed in IA No.3 in O.S. 2914/2020 by the
Court of the Learned LXXV Additional City Civil and Sessions Judge
(CCH-5), at Bangalore, rejecting the Plaint by allowing the
application filed by the Defendant No.1 under order VII Rule 11(d)
r/w 151 of CPC have preferred this Appeal.

4. I state that the Plaintiffs filed the suit for declaration, possession
and consequential relief of injunction in respect of property
bearing Site No.7, carved out of Sy.No.24/3. New No.24/4
measuring 40x60 feet situated in Pattanagere Village, Kengeri
Hobli, Bengaluru South Taluk, which is referred to as Suit
Schedule Property.
5. I state that the lands in Pattanagere Village to an extent of 58
acres and odd came to be notified by the State Government for
the benefit of REMCO(BHEL) House Building Co-operative Society
which is arrayed as Defendant No.3 in the suit. The acquisition
proceedings were set aside by holding that the same was not for
public purpose relying upon the GVK Roa Committee Report by the
Division Bench of this Hon’ble Court in the judgment reported in
ILR 1991 KAR 2248. The said Judgment was carried in appeal by
the 3rd Defendant Society along with other Society’s to the
Supreme Court wherein the Supreme Court vide Judgment
reported in ILR 1995 KAR 1962 (SC) not only confirmed the
Judgment of this Hon’ble Court quashing the acquisition
proceedings but also directed the State, the instrumentalities of
the State and the Housing Societies to restore the land in favour
of the original land owners irrespective of the fact that whether
they had approached the Court or not.

6. I state that on such restoration of lands in terms of the Judgment

of the Supreme Court, the original land owners sold the land in
Sy.No.24/3 in favour of the 2nd Defendant and one N.R.Nagaraj
under a registered Sale Deed dated 22.10.2004. On 31.05.2005,
N.R.Nagaraj relinquished his right in favour of the 2nd Defendant.
Later the 2nd Defendant got converted the land into non-
agricultural purpose and formed a layout and sold site No.7 i.e.,
the Suit schedule property in favour of the Plaintiffs under a
registered Sale Deed dated 01.07.2006.

7. I state that per contra inspite of quashing of acquisition

proceedings and losing its case before the Hon’ble Supreme Court,
the 3rd Defendant Society continued to execute Sale Deeds in
favour of its members/allottees as if it had title over the property
that were notified for acquisition. The 1 st Defendant is one such
allottee who claims title on the basis of a registered Sale Deed
dated 20.11.1992 executed by the 3rd Defendant Society.

8. I state that the Plaint averments further reveal that initially

Defendant No.1 had filed a suit for Permanent Injunction in
 O.S.No.7699/2009 in respect of his alleged site No.124 acquired
under a registered Sale Deed dated 20.11.1992 stated supra
against the vendors of the Plaintiff and such other persons, but
not against the Plaintiffs. The Plaintiffs also filed a suit against
Defendant No.1 in O.S.No.27353/2009 for the relief of Permanent
Injunction.

9. I state that both the suits got clubbed and came to be dismissed
vide common Judgment dated 13.01.2012 by the Trial Court
primarily on the ground that the suit for bare injunction is not
maintainable by quoting the Judgment of the Apex Court in
Anathula Sudhakar v. P.Buchi Reddy reported in AIR 2008
SC 2033. As against which the Plaintiffs preferred an appeal in
RFA No.1124/2012 and the 1st Defendant also filed an appeal in
RFA No.398/2012. This Hon’ble Court vide Judgment dated
24.09.2019 allowed the appeal filed by the 1 st Defendant and
dismissed the appeal filed by the Plaintiffs on noting that the 1 st
Defendant has established his possession over the property in
dispute and felt that the Judgment of the Apex Court in Anathula
Sudhakar v. P.Buchi Reddy is not applicable to the facts of this
case because the Plaintiffs herein who tried to claim right over the
disputed property by filing a second suit in O.S.No.27353/2009
were not parties to the suit of the 1 st Defendant. In other words,
the Plaintiffs were not arrayed as Defendants in
O.S.No.7699/2009. Therefore, the Defendants in
O.S.No.7699/2009 have not become successful in creating cloud
over the title of the 1st Defendant i.e., Plaintiffs in
O.S.No.7699/2009.

10. I state that this has given a cause of action for the Plaintiffs
who assert title in respect of Schedule property based on the Sale
Deed executed from their vendors who in turn claim title through
the original land owners who got back the land consequently upon
the Judgment of the Apex Court quashing the acquisition
proceedings restoring the possession as well as title, as against
the 1st Defendant who claims title on the basis of the Sale Deed
executed by the 3rd Defendant Society.
11. I state that on being satisfied that the Plaintiffs have made
out a prima facie case the Hon’ble Trial Court was pleased to grant
an ad-interim order of temporary injunction restraining the
Defendants from alienating or creating encumbrance over the suit
schedule property on 07.07.2020 and the said order was being
extended from time to time until the rejection of the plaint.

12. I state that the 1st Defendant filed an Application under

Order 7 Rule 11(d) to reject the Plaint on the ground that the suit
is barred by limitation. In the affidavit filed in support of the
application, it was mainly urged that the suit of the 1 st Defendant
in O.S.No.7699/2009 for the relief of Permanent Injunction is
decreed by the Hon’ble High Court, whereas the suit of the Plaintiff
has been dismissed and the same has attained finality.

13. I state that it was contended that the Compromise Decree in

O.S.No.4601/2000 was within the knowledge of the Plaintiffs as it
was brought to their notice by filing Written Statement in
O.S.No.27353/2009 on 17.12.2009 itself. Hence the same cannot
be challenged after 11 years.

14. I state that it is pertinent to note that however for the first
relief of declaration of title sought for in the Plaint no grounds
were made out for rejection of Plaint. The application was opposed
on the ground that in the earlier round of litigation the Courts
have not adjudicated on the aspect of title and the question of
limitation is a mixed question of law and fact which was to be
thrashed out during the course of trial.

15. I state that the Trial Court without appreciating the settled
principles of law that the Courts have to consider the averments in
the plaint and plaint alone, and though admittedly so far as the
first relief in the plaint is concerned no ground was made out to
reject the plaint and the cause of action for the first prayer arose
only subsequently to the Judgment dated 24.09.2019 passed by
the Hon’ble High Court in RFA No.398/2012. Without considering
the same, the Trial Court has erroneously passed this impugned
order thereby rejecting the plaint.
16. I state that in the earlier round of litigation the Courts have
not adjudicated on the aspect of title and the question of limitation
is a mixed question of law and fact which was to be thrashed out
during the course of trial.

17. I state that admittedly so far as the first relief in the plaint is
concerned no ground was made out to reject the plaint and the
cause of action for the first prayer arose only subsequently to the
Judgment dated 24.09.2019 passed by the Hon’ble High Court in
RFA No.1124/2012. Therefore, the overall reading of the plaint
averments reveals cause of action for filing of the suit is the
dismissal of the appeal in R.F.A.No.1124/2012. Hence, the
plaintiffs having made out a cause of action the plaint could not
have rejected exercising powers under order 7 rule 11 of CPC.

18. I state that it is settled law that while passing an order

under order 7 rule 11 of CPC the court is bound to examine the
contents of plaint alone and should not venture into examining the
sufficiency of evidence or defense put forth by the defendants.
This is the law laid down by the Apex Court in the case of Saleem
Bhai vs. State of Maharastra reported in AIR 2003 SC 759.

19. I state that the Trial Court having regard to nature of the
dispute, instead of adjudicating the suit determining proper cause
of action, has erroneously passed the impugned order dated
14.12.2022 rejecting the plaint.

20. I state that the apart from a small shed belonging to the
Plaintiffs there is nothing else on the Suit Schedule Property. At
present, taking advantage of the impugned order rejecting the
Plaint, the Defendant No.1 is trying to hastily put up construction
over the Schedule Property without due process of law. Hence
there is necessity to grant interim order as prayed for.

21. I state that, in view of the same in the circumstances of this

case there is necessity to grant interim order as prayed for.
 22. I state that, the afore-stated reasons are genuine and bona-
fide and the Appellants have a good case to succeed on merits.

23. I state that if the accompanying application is allowed no

harm or prejudice will be caused to the Respondent No.1, on the
other hand if the same is not allowed the Appellants will be put to
great hardship and injury.

WHEREFORE I most respectfully pray that this Hon’ble court may be

pleased to allow the accompanying application as prayed for, in the
interest of justice and equity.

Bangalore
Dated: DEPONENT

Identified by me

Advocate