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2022 Supreme(Online)(Kar) 32014
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JUNE, 2022
BEFORE
THE HON9BLE MR.JUSTICE B.M.SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO.4705/2021 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO.4704/2021 (CPC)
IN MFA NO. 4705/2021
BETWEEN:
1.
SRI K L PRABHAKAR
S/O SRI K.LAKKAPPA,
AGED 74 YEARS,
R/AT NO.311, MATHRUSHREE,
ORCHID HOMES,
KEMPAPURA ROAD, YEMLUR
BANGALORE - 560 037.
2.
SRI.K.L.SUDHAKAR
S/O LATE K.LAKKAPPA
AGED 70 YEARS,
R/AT NO.60, SRI KRISHNA GURU KRUPA
UNNATHI ENCLAVE,
THOPPONAGARA, CHIKKAGUBBI
BANGALORE - 560 077.
3.
SRI.DIGANTH DIVAKAR
S/O LATE SRI DIVAKAR
AGED 34 YEARS,
R/AT NO.205, FUTURE PLAZA,
HADOSIDDAPURA, SARJAPUR ROAD,
BANGALORE - 560 035.
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4.
SMT.DIVYA DIVAKAR
D/O LATE SRI DIVAKAR
AGED 38 YEARS,
R/AT NO.307,
SHREE SHORE ICON HOME,
KEMPAPURA ROAD, YEMLURU,
BANGALORE - 560 037.
... APPELLANTS
(BY SRI. UDAYA HOLLA, SENIOR ADVOCATE FOR
SRI. SHANKARE GOWDA V N, ADVOCATE)
AND:
SRI. B. V. VENKATESH
S/O LATE VENKATASWAMY,
AGED 72 YEARS,
R/AT NO.460/B, 7TH CROSS,
7TH MAIN ROAD, GANESHA BLOCK,
MAHALAKSHMI TENT ROAD,
NANDINI LAYOUT
BANGALORE - 560 096.
... RESPONDENT
(BY SRI. T. PRAKASH, ADVOCATE FOR R1 & R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER ORDER 43 RULE 1(r) OF CPC,1908 AGAINST THE
ORDER DATED 31.08.2021 PASSED ON I.A. NO.I AND II IN
O.S.NO. 144/2020 ON THE FILE OF THE VI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY
(CCH.11), REJECTING I.A. NO.1 FILED UNDER ORDER
XXXIX RULES 1 AND 2 READ WITH SECTION 151 OF CPC,
1908 AND ALLOWING I.A.NO.II FILED UNDER ORDER
XXXIX RULE 4 READ WITH SECTION 151 OF CPC, 1908.
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IN MFA NO. 4704/2021
BETWEEN:
1.
SRI K L PRABHAKAR
S/O SRI K.LAKKAPPA,
AGED 74 YEARS,
R/AT NO.311, MATHRUSHREE,
ORCHID HOMES,
KEMPAPURA ROAD, YEMLUR
BANGALORE - 560 037.
2.
SRI.K.L.SUDHAKAR
S/O LATE K.LAKKAPPA
AGED 70 YEARS,
R/AT NO.60, SRI KRISHNA
GURU KRUPA
UNNATHI ENCLAVE,
THOPPONAGARA, CHIKKAGUBBI
BANGALORE - 560 077.
3.
SRI.DIGANTH DIVAKAR
S/O LATE SRI DIVAKAR
AGED 34 YEARS,
R/AT NO.205, FUTURE PLAZA,
HADOSIDDAPURA, SARJAPUR ROAD,
BANGALORE - 560 035.
4.
SMT.DIVYA DIVAKAR
D/O LATE SRI DIVAKAR
AGED 38 YEARS,
R/AT NO.307,
SHREE SHORE ICON HOME,
KEMPAPURA ROAD, YEMLURU,
BANGALORE - 560 037.
... APPELLANTS
(BY SRI. UDAYA HOLLA, SENIOR ADVOCATE FOR
SRI. SHANKARE GOWDA V N, ADVOCATE)
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AND:
1.
SRI. B. V. VENKATESH @VENKATESH
S/O LATE VENKATASWAMY,
AGED 72 YEARS,
R/AT NO.460/B, 7TH CROSS,
7TH MAIN ROAD, GANESHA BLOCK,
MAHALAKSHMI TENT ROAD,
NANDINI LAYOUT
BANGALORE - 560 096.
2.
SRI. SANDESH.G
S/O SRI. R. GOVINDARAJU
AGED ABOUT 34 YEARS
R/AT SANGEETHA NILAYA
NANDI HILLS ROAD, OPP FORES OFFICE
T.B. NARAYANAPPA BADAVANE
DODDABALLAPURA - 561 203
BANGALORE RURAL DISTRICT.
... RESPONDENTS
(BY SRI. T. PRAKASH, ADVOCATE FOR R1 & R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER ORDER 43 RULE 1(r) OF CPC,1908 AGAINST THE
ORDER DATED 31.08.2021 PASSED ON I.A. NO.I IN
O.S.NO. 474/2020 ON THE FILE OF THE VI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY
(CCH.11), ALLOWING IA NO.1 FILED UNDER ORDER 39
RULE 1 AND 2 R/W SECTION.151 OF CPC.
THESE MISCELLANEOUS FIRST APPEALS COMING
ON FOR ADMISSION THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
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These appeals are filed impugning separate but
similar orders dated 31.08.2021 in O.S. Nos.144/2020
and 474/2020 on the file of the VI Additional City Civil
and Sessions Judge, Bengaluru [for short, 8the civil
Court9]. The civil Court has rejected the appellants'
application
for
temporary
injunction
in
O.S.
No.144/2020 while allowing the contesting respondent -
Sri. B Venkatesh9s application for vacating the interim
order, and conversely, the civil Court has allowed
contesting respondent9s application in his suit in O.S.
No.474/2020
for
temporary
injunction
and
the
appellants are restrained from interfering with the
property as described in such suit. The contesting
respondent9s undertaking, in the present proceedings,
not to demolish the existing structures in the property
described in O.S. No.474/2020 is continued and is in
force as of today.
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2.
The appellants' suit in O.S. No.144/2020 is
for permanent injunction against the respondents from
interfering with their possession of a property which is
described as measuring 18,725 sq. feet in Sy. No.1
[Block
No.49]
of
Jarakabandekaval
Village,
Yeshwanthpur/Yelahanka
Hobli,
Bengaluru
North
Taluk [now within the limits of Bruhat Bengaluru
Mahanagara Palike of Ganesha Block, Mahalakshmi
Layout, Bengaluru - 560 086.
3.
The
contesting
respondent
3
Sri.
B
Venkatesh9s suit in O.S. No.474/2020 is for permanent
injunction against the appellant from interfering with
his possession of the property described as measuring
30 guntas out of 1 acre 27 guntas [measuring 32,670
sq.
feet]
in
Sy.
No.154
[old
Sy.
No.1]
of
Jarakabandekaval Village, Yeshwanthpura/ Yelahanka
Hobli, Bengaluru North Taluk, and now within the
limits of Bruhat Bengaluru Mahanagara Palike.
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4.
It is obvious from the description of the
properties in the two suits that the appellants and the
contesting respondent stake title to different extents in
Sy.
No.1
of
Jarakabandekaval
Village,
Yeshwanthpur/Yelahanka
Hobli,
Bengaluru
North
Taluk but assert possession over the same extent
inasmuch as they assert that they are in possession of a
'Movie Tent' [Mini Theatre] with a built-up area of 5,000
sq. ft.
5.
The appellants contend that an extent of 1
acre 10 guntas in Sy. No.1 of Jarakabandekaval Village,
Yeshwanthpur/Yelahanka
Hobli,
Bengaluru
North
Taluk is granted to Sri. Chikka Guruva Bhovi way back
in the year 1969 and he has transferred this extent of 1
acre 10 guntas in their favor on 06.02.1970 in two
portions. The Bangalore Development Authority has
issued notifications to acquire this extent as also
adjacent lands, but the notifications are not taken to
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their logical end because of the development in the
lands. The appellants rely upon the contesting
respondent's pleadings in the suit in O.S. No.
1101/2003, a suit for permanent injunction against the
appellants, to assert that the contesting respondent has
conceded that the appellants are in possession of the
'Movie Tent' [Mini Theatre] stating that he has licensed
the appellants to operate the 'Movie Tent' [Mini Theatre].
The appellants assert that therefore they establish
indisputable possession of the subject property with the
'Movie Tent' [Mini Theatre].
6.
On
the
other
hand,
the
contesting
respondent
contends
that
his
father,
Sri.
N.
Venkataswamy, in the year 1967, is granted an extent
of 3 acres 7 guntas in Sy. No.1 of Jarakabandekaval
Village, Yeshwanthpur/Yelahanka Hobli, Bengaluru
North Taluk. He has transferred this total extent in two
portions in favor of the appellants and another, Sri. K.B.
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Venkatesh. He has transferred an extent of 2 acres 17
guntas in favor of the appellants on 16.08.1969 and he
has transferred the remaining extent of 30 guntas in
favor of Sri. K.B. Venkatesh on 25.12.1974. After his
father's demise, he has filed applications for resumption
and restoration under the provisions of the Karnataka
Scheduled Castes and Scheduled Tribes [Prohibition of
Transfer of Certain Lands] Act, 1978 [for short, 'the
P
