JUDGMENT Plaintiff is in appeal challenging order passed by XIII Additional City Civil Judge, Mayohall, Bangalore in O.S.26707/2012 dated 29.10.2013 whereunder I.A.I filed under Order XXXIX Rule 1 and 2 seeking temporary injunction restraining the defendant from interfering with alleged possession of plaintiff till disposal of the suit came to be rejected. 2. Plaintiff has filed a suit for perpetual injunction contending interalia that his father Sri.Doddamarappa has purchased and possessed suit schedule property having acquired the same under a registered sale deed dated 09.11.1953 and khatha of the suit property has been changed to his father’s name and RTC extract would indicate the said fact. It has been contended that plaintiff’s father was in possession and enjoyment of the property till his demise. Subsequently all the legal heirs of Sri.Doddamarappa are in possession and enjoyment of the suit schedule property. They contended they have not sold any portion of the property and hence defendants are causing alleged interference which perforced them to file a suit for perpetual injunction and also application for grant of temporary injunction. On these grounds they contended that balance of convenience is in their favour and sought for temporary injunction. On service of suit summons defendants appeared and filed written statement denying the averments made in the plaint and also averments made in the application for temporary injunction. After examining the rival contentions the trial court initially granted an order of status quo by order dated 23.11.2012. Being aggrieved by the same defendant approached this court in MFA No.11752/2012. This court by order dated 27.08.2013 disposed of the appeal with a direction to the trial court to take into consideration additional evidence to be produced by defendants and to reconsider I.A.1 filed by plaintiff under Order XXXIX Rule 1 and 2 within a period of eight weeks from the date of receipt of certified copy of the order. It was also ordered that till disposal of interim application, order of status quo granted earlier is to be maintained. It was also ordered that till disposal of interim application, order of status quo granted earlier is to be maintained. Subsequently trial court reexamined the contentions of the parties, reconsidered the documents produced by respective parties and also took into consideration additional evidence produced by defendants and held that plaintiff had suppressed all material facts and had not disclosed facts which was within his knowledge and as such it held there was no balance of convenience or prima facie case in his favour and accordingly rejected the application on 29.10.2013. Being aggrieved by the same this appeal is filed. 3. I have heard the arguments of Sri.Amit Deshpande, learned counsel appearing for appellant and Sri.V.B.Shivakumar, learned counsel appearing for respondents. Perused the order under challenge as also documents produced by both the parties before trial court which has been made available to me during the course of arguments by respective learned advocates appearing for the parties. Parties are referred to as per their rank in the trial court. 4. It is the contention of Sri.Amit Deshpande, learned counsel appearing for plaintiff that trial court committed a serious error in not pursuing the documents produced by defendants regarding right, title and interest in proper perspective. Regarding documents produced by defendants though it did not pertain to suit schedule property it erred in coming to a conclusion that suit schedule property has lost characteristic of agricultural land and based on alleged layout plan and other documents produced by defendants order of status quo came to be dissolved without proper and cogent reasons. He would also submit that RTC extract produced by plaintiff would clearly indicate that khatha has been in the name of plaintiff and presumption under section 133 of Karnataka Land Revenue Act would arise about the contents of RTC extract in favour of plaintiff and non consideration of this vital aspect by trial court has resulted in great miscarriage in the administration of justice. He would elaborate his submission by contending that trial court has not given any reason except referring to documents produced by defendants without taking into consideration the documents produced by plaintiff and these documents would clearly establish prima facie title in favour of plaintiff and it amounts to triable issue and as such trial court ought to have granted an order of temporary injunction. On these grounds he seeks for allowing the appeal by setting aside the order passed by trial court and allowing I.A.I filed before the trial court. 5. Per contra, Sri.V.B.Shivakumar, learned counsel appearing for defendants would support the order under challenge and he would elaborate his submission by contending that plaintiff is guilty of suppression of facts. He would draw the attention of this court to the documents produced before the trial court which would clearly indicate the fact that plaintiff’s father and other members of the family had formed residential layout and had sold various bits of land in Hulimavu village and having sold said property, suit schedule property had lost the characteristic of being a agricultural land particularly in the background of communication dated 06.04.1991 issued by Bangalore Development Authority whereunder the statutory body namely Bangalore Development Authority has intimated the plaintiff about deferring his request for deleting Sy.No.59 from the acquisition proceedings which according to him itself would be sufficient to conclude said Sy.No.59 was the subject matter of acquisition and the fact that Bangalore Development Authority itself had intimated the plaintiff’s father about the entire area having been fully developed, it does not lie in the mouth of plaintiff to contend that it is still an agricultural land. Hence, he submits that order of trial court does not suffer from any infirmity either on facts or in law calling for interference at the hands of this court. 6. Having heard the learned advocates appearing for the parties I am of the considered view that following point would arise for my consideration: “1. Whether order dated 29.10.2013 passed by trial court dismissing the interlocutory application I.A.1 filed under Order XXXIX Rule 1 and 2 by plaintiff deserves to be affirmed or set aside or modified? 2. What order?” 7. While considering application for injunction it is well settled that courts would pass an order thereupon having regard to (1) prima facie case, (2) balance of convenience and (3) irreparable loss or injury. A finding of prima facie case would be finding of fact and to arrive at such a conclusion court would embark upon as to whether there is triable issue based on the averments made in the plaint as also contentions raised by defendant either in the written statement or objections filed to the application opposing such grant of prayer and on scrutiny of documents. As noticed by Hon’ble Apex Court in M/s. Transmission Corporation of A.P. Ltd. Vs M/s. Lanco Kondapalli Power (P) Ltd. reported in (2006) 1 SCC 540 as to what constituted a triable issue it has been held as under: “36. The respondent, therefore, has raised triable issues. What would constitute triable issues has succinctly been dealt with by the House of Lords in its well-known decision in American Cyanamid Co v. Ethicon Ltd. holding (All ER p.510cd): "Your Lordships should in my view take this opportunity of declaring that there is no such rule. The use of such expressions as 'a probability', 'a prima facie case', or 'a strong prima facie case' in the context of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object sought to be achieved by this form of temporary relief. The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried." It was further observed : (All ER pp.511bc& 511j) "Where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo. If the defendant is enjoined temporarily from doing something that he has not done before, the only effect of the interlocutory injunction in the event of his succeeding at the trial is to postpone the date at which he is able to embark on a course of action which he has not previously found it necessary to undertake; whereas to interrupt him in the conduct of an established enterprise would cause much greater inconvenience to him since he would have to start again to establish it in the event of his succeeding at the trial. The factors which he took into consideration, and in my view properly, were that Ethicon's sutures XLG were not yet on the market; so they had no business which would be brought to a stop by the injunction; no factories would be closed and no workpeople would be thrown out of work. They held a dominant position in the United Kingdom market for absorbable surgical sutures and adopted an aggressive sales policy”. 8. Keeping these principles in mind, facts on hand requires to be examined. They held a dominant position in the United Kingdom market for absorbable surgical sutures and adopted an aggressive sales policy”. 8. Keeping these principles in mind, facts on hand requires to be examined. A perusal of the averments made in the plaint would clearly indicate that plaintiff is claiming that the suit schedule property is an agricultural land and it is being tilled by plaintiff as on the date of filing of the suit. In support of his contention plaintiff has produced RTC extract for the year 2012-13 to contend that suit schedule property is an agricultural land. Defendants had also produced certain documents before trial court which has also been made available to me for perusal as already observed herein above. A perusal of these documents would clearly indicate that Sy.No.59 was the subject matter of acquisition by Bangalore Development Authority in the year 1987 for the purpose of formation of Byrasandra, Tavarekere, Madiwala 6th Stage Layout. Sy.No.59 i.e., suit schedule property was also the subject matter of acquisition as could be seen at entry at Sl.No.144 of the said notification. Neither the name of the plaintiff or defendant is reflected but on the other hand it would indicate the name of Khathedar, Anubhavadar is “Society Liquidator”. This itself is sufficient to arrive at a conclusion that plaintiff or his predecessor were not in possession of suit schedule property atleast as on 1987. Further an endorsement came to be issued to the plaintiff’s father by the Bangalore Development Authority on 06.04.1991 which would clearly indicate the following aspects: (1) Sy.No.59 was notified for acquisition by Bangalore Development Authority. (2) After inspection it was found by Bangalore Development Authorities that the area was built up and it comes within the periphery of Gramthana (3) Prayer of plaintiff’s father to delete Sy.No.59 from acquisition was being examined by Three Men Committee appointed by Chairman of Bangalore Development Authority. That apart layout plan approved by Hulimavu Panchayat came to be produced before trial court which would indicate layout has been formed in Sy.No.59 which came to be duly approved by Panchayat authority. Said plan would also indicate it has been approved subject to (1) payment of development fee (2) sanctioned plan to be obtained in respect of each site (3) plan is sanctioned in view of approval given by Government as well as Bangalore Development Authority. Said plan would also indicate it has been approved subject to (1) payment of development fee (2) sanctioned plan to be obtained in respect of each site (3) plan is sanctioned in view of approval given by Government as well as Bangalore Development Authority. Apart from these documents the sale deeds said to have been executed by plaintiff’s father, plaintiff’s brother and plaintiff was also produced before trial court which would clearly indicate that they have sold sites in Sy.No.59. Though Sri.Amit Deshpande would make a valiant effort to persuade this court that schedule of these sale deeds does not indicate that it is in Sy.No.59, I am not inclined to accept the same for the simple reason that in the encumbrance certificate it is clearly indicated these sites which have been sold are carved out of Sy.No.59. Mere entry in RTC extract which stood rebutted prima facie was sufficient enough for the plaintiff to disentitle himself to equitable relief of temporary injunction. As such entry found in the RTC extract prima facie would indicate that presumption has stood rebutted which would of course be subject to trial and parties will have to demonstrate about the contents of these documents. The recitals in the registered document cannot be ignored by this court. Plaintiff and his family members having formed a layout and having sold the sites in bits are attempting to lay a claim by not only suppressing material facts before trial court but also before this court inasmuch as there is not even a whisper in plaint about acquisition proceedings having taken place in respect of suit schedule property and representation said to have been submitted by plaintiff’s father to the Bangalore Development Authority seeking for deletion of suit schedule property from the acquisition. This itself would clearly indicate that neither there is prima facie case in favour of plaintiff nor balance of convenience but on the other hand by trick and stratagem plaintiff has attempted to obtain an order of status quo and has been successful hitherto, which was not continued by the trial court later and rightly so. Hence, fact of granting status quo cannot be taken note of by this court in view of the aforesaid facts. 9. Hence, fact of granting status quo cannot be taken note of by this court in view of the aforesaid facts. 9. There is no explanation whatsoever forthcoming from the averments made in the plaint as to the various sale deeds executed by plaintiff’s father, plaintiff’s brother in respect of sites formed in Sy.No.59 as evidenced from the encumbrance certificate for the period relating to 01.01.2004 to 24.03.2011 which would indicate several sales of bits of land in Sy.No.59 has taken place. 10. Infact plaintiff claims to have acquired title to Sy.No.59 under a sale deed dated 09.11.1953. However, Encumbrance certificate relating to the period 01.04.1952 to 14.02.1957 produced by the defendant would indicate that there is partition in respect of Sy.No.59 amongst the family members of plaintiff’s father and his brother. Thus the cloud that has been created over the title to suit schedule property requires to be cleared by plaintiff after fullfledged trial. Any observations in this regard if made by this court may prejudice the case of the plaintiff himself. As such this aspect is not delved upon in this appeal. 11. In that view of the matter trial court has rightly held that neither there is prima facie case nor balance of convenience in favour of plaintiff. I do not find any infirmity whatsoever in the order passed by trial court. 12. It is needless to state that observations made by trial court at the time of disposing I.A.I or observations made herein above by this court while disposing of this appeal shall be construed as opinion expressed on merits and trial court shall in no manner be influenced by such observation. It is at liberty to take an independent view. RE:POINTNO.2: For the reasons aforestated following order is passed: ORDER 1. Appeal is hereby dismissed with costs. 2. Order passed by trial court in O.S.26707/2012 dated 29.10.2013 is hereby affirmed. 3. Plaintiff to pay respondents/defendants 1 to 3 cost of Rs.1,000/-(Rupees One Thousand Only) within a period of three weeks from today. 4. Trial court shall expeditiously dispose of the suit.