B.M. MUDDABYRAPPA Vs. SOMEGOWDA

JUDGEMENT

(1.) Petitioner is the plaintiff in OS No. 537/2013 on the file of the Senior Civil Judge and JMFC, Nelamangala. Being aggrieved by the order dated 2.9.2014 made in MA No. 26/2014 by the Presiding Officer, Fast Track Court -II, Bangalore Rural District, Bangalore, dismissing the appeal and confirming the order dated 9.6.2014 on I.A. No. 1 in OS No. 537/2013 passed by the Senior Civil Judge, Nelamangala, this writ petition has been filed.

(2.) Petitioner filed the suit seeking for declaration declaring that he is the owner of land bearing Sy. No. 6/5 measuring to an extent of 2 acres 3 guntas situated at Byranahalli, Kasaba Hobli, Nelamangala Taluk, Bangalore Rural District. He also filed an application under Order 39 Rules 1 and 2 of CPC seeking for temporary injunction. His case is that his sister by name, Smt. Rajamma as per registered sale deed dated 29.7.1993 purchased the suit schedule property and other two items of properties from the children of Ramaiah. Thereafter, Smt. Rajamma had executed settlement deed dated 12.12.1994 in favour of the plaintiff and mutation entry was also effected in the name of plaintiff. However, the respondent herein, who is the neighbour of the plaintiff, tried to encroach upon the suit schedule property. Hence, he filed the suit for declaration and injunction.

(3.) The defendant filed written statement denying the entire averments made in the plaint. He also contended that much prior to the purchase of the property by Smt. Rajamma, the defendant entered into an agreement of sale on 20.1.1993 with the children of Ramaiah in respect of 1 acre 4 guntas of land in Sy. No. 6/2 of Byranahalli village, Kasaba Hobli, Nelamangala Taluk. Since the children of Ramaiah have not executed the sale deed, the defendant filed OS No. 1668/2007 for specific performance of agreement of sale. After trial, the said suit was decreed on 21.8.2008. In spite of decreeing the suit, the defendant therein has not come forward to execute the sale deed. In Ex. Case No. 111/2008, the plaintiff got registered the sale deed through process of court. The defendant, much earlier to the execution of sale deed, is in possession of 1 acre 4 guntas of land. The total extent of land is 3 acres 5 guntas in Sy. No. 6/2. The defendant purchased 1 acre 4 guntas of land. The question of alienating 2 acres 3 guntas of land to Smt. Rajamma does not arise. The defendant has been in possession of suit schedule property from the date of agreement of sale by paying full consideration. The defendant sought for dismissal of the application filed under Order 39 Rules 1 and 2 of CPC.