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2012 DIGILAW 359 (KAR)

K. Jayalakshmi v. U. Mathyas

2012-04-16

H.G.RAMESH

body2012
Judgment : 1. This appeal by the plaintiffs is directed against an interlocutory order dtd. 14th march, 2012 passed by the trial Court, namely the Court of the 42nd Addl. City Civil Judge, Bangalore (CCH.No.43). in the suit in O.S.No. 1218/2002 dismissing I.A. No.1 filed by the plaintiff. The said I.A. was filed for grant of temporary injunction against respondent No.1/defendant, to restrain him from interfering with their possession of the plaint schedule property. 2. The case of respondent No.1/defendant is that he has purchased a site measuring 25’x35’ by a registered sale deed dtd. 19.01.2012 for a sale consideration of Rs.21,15,000/- and he is putting up a construction thereon. It is stated that he is the fifth purchaser of the said site measuring 25’x35’ The plaint schedule property consists of 5 sites. The contention of the learned counsel for the appellants/plaintiffs is that the site purchased by the defendant does not form part of the plaint schedule property, but the defendant wants to locate his site in the plaint schedule property. 3. The trial Court, on a detailed consideration of the material produced before it, has held that the plaintiffs had not made out any prima facie case for grant of temporary in junction. On the countrary, it has observed that the defendant had produced all the sale deeds for the period from 04.11.1970 to 19.01.2012 relating to the site measuring 25’x35’ purchased by him. 4. It is relevant to refer to the following finding of the trial Court at para 11 of the impugned order: “11. On perusal of the material placed before the court by both the parties, there is a serious dispute regarding identity of the suit schedule property claimed by the plaintiffs and their title and possession over the said property. The plaintiffs are basing their claim only on the judgment delivered by the Hon’ble High Court in RFA.No.36/2003, Wherein, the Hon’ble High Court has declared the title of the plaintiffs over the suit schedule property in O.S.No. 1793/1994. The relief of possession, mandatory injunction and permanent injunction are rejected. The plaintiff have not produced any material to show that they are in possession of the suit schedule property involved in the present suit. There is no khatha in their names issued by the BBMP after the death of their father. The relief of possession, mandatory injunction and permanent injunction are rejected. The plaintiff have not produced any material to show that they are in possession of the suit schedule property involved in the present suit. There is no khatha in their names issued by the BBMP after the death of their father. Even they have not produced any documents in the name of their father in respect of the suit schedule property. They have not produced any layout plan and survey sketch to prove the identify, measurement and boundaries of the suit schedule property. They are claiming huge extent of property without producing any satisfactory proper documents. On the other hand, the other hand, the defendant has produced the Sale Deed from 04.11.1970 till 19.01.2012. There are number of transactions in respect of the property, claimed by the defendant. The defendant has undertaken construction and substantial construction is done on the disputed property. When the defendant had already undertaken construction on the disputed property, this fact goes to show that the plaintiffs are not in possession of the said property. The very application filled by the plaintiffs claiming to be in possession of the disputed property has become infructuous in view of the construction already undertaken by the defendant. Hence, the plaintiffs have not established prima-facie case, the balance of convenience does not lie in their favor. It is not a fit case to grant the relief of temporary injunetion......” (Underlining Supplied) 5. In my opinion, on the facts of the case, the discretion exercised by the trial Court in dismissing I.A.No.1, cannot be said to be arbitrary or capricious to warrant interference in appeal. However, if the defendant proceeds with the further construction in accordance with law, and if the plaintiffs prove that they are the owners of the plaint schedule property and that the defendant has put up the contruction on the plaint schedule property, the defendant, in that event, shall deliver possession of the land along with the construction put up by him without claiming any equity. 6. Subject to the above, the impugned order stands affirmed. The appeal stands disposed of in the above terms. In view of disposal of the appeal. I.A.No.1/2012 filed for temporary injunction does not survive for consideration; it stands disposed of accordingly.