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2015 DIGILAW 1243 (KAR)

Hanumanthaiah v. Jayalakshmamma

2015-11-16

ARAVIND KUMAR

body2015
ORDER : Aravind Kumar, J. 1. Heard Sri Abhinav Anand, learned Advocate appearing for petitioner and perused the records. Writ petitioner is first defendant in O.S. No. 226 of 2013 and respondent herein is the plaintiff. Plaintiff filed the suit for perpetual injunction against first defendant and four others contending inter alia that suit schedule property belonged to one late Sri Murarappa and on his demise, his wife and children have executed among themselves a Panchayat partition of the properties including suit schedule properties on 10-9-1996; beneficiary under the said partition Sri Byranna had sold suit schedule property in favour of plaintiff under registered sale deed dated 23-9-1999 and thereafter, plaintiff had obtained mutation of revenue records and has been in possession and enjoyment of the same. In support of her claim, plaintiff furnished revenue records including RTC extracts of the suit schedule property. Said suit was clubbed along with O.S. No. 184 of 2012 which was filed by writ petitioner along with one Sri Arasaiah for declaration, perpetual injunction and in the alternate to direct fifth defendant to hand over possession of the same. 2. In the suit filed by respondent herein i.e., O.S. No. 226 of 2013, an application came to be filed by plaintiff under Order 39, Rules 1 and 2 of Civil Procedure Code, 1908 for grant of temporary injunction and Trial Court on appreciation of rival contentions, found that plaintiff has satisfied three ingredients for grant of temporary injunction namely, prima facie case, balance of convenience and irreparable loss and injury that would be caused to plaintiff, if an order of injunction is refused and as such, by order dated 12-11-2014 (Annexure-B) Trial Court allowed said application and granted an order of temporary injunction in favour of plaintiff. Unsuccessful first defendant carried the matter in appeal M.A. No. 5 of 2015 and First Appellate Court on re-appreciation of entire facts and material produced by respective parties, affirmed the order passed by Trial Court and dismissed the appeal by order dated 6-7-2015 (Annexure-A) which orders are impugned in the present writ petition. 3. Unsuccessful first defendant carried the matter in appeal M.A. No. 5 of 2015 and First Appellate Court on re-appreciation of entire facts and material produced by respective parties, affirmed the order passed by Trial Court and dismissed the appeal by order dated 6-7-2015 (Annexure-A) which orders are impugned in the present writ petition. 3. It is the contention of Sri Abhinav Anand, learned Advocate appearing for petitioner that both the Courts erred in not considering the fact that Power of Attorney holder of plaintiff having expired even before order of temporary injunction was granted and same could not have been granted when there is no application filed by the plaintiff to prosecute the suit or alternatively when no other Power of Attorney holder having been appointed by her. On merits, he contends when suit filed by the writ petitioner was for grant of comprehensive relief namely, declaration and injunction and when there was cloud created over title of respondent-plaintiff, Trial Court ought not to have granted temporary injunction and same should not have been affirmed by First Appellate Court. 4. Having heard the learned Advocate appearing for petitioner and on perusal of the case papers including impugned orders, this Court is of the considered view that both contentions of learned Advocate appearing for petitioner is without any merit and liable to be rejected for the following reasons: Firstly, when plaintiff had executed Power of Attorney in favour of her husband and he having expired, does not prevent the plaintiff from continuing to prosecute her claim. Power of Attorney issued by plaintiff in favour of her agent who incidentally happened to be her husband in the instant case had come to an end on his death and order which came to be passed by Trial Court granting temporary injunction was in favour of plaintiff and not in favour of her Power of Attorney holder. Therefore, first contention raised by Sri Abhinav Anand cannot be accepted and it stands rejected. Therefore, first contention raised by Sri Abhinav Anand cannot be accepted and it stands rejected. Insofar as second contention is concerned, it could be seen from the records as well as from the impugned orders, plaintiff has asserted her title to suit property by virtue of a registered sale deed dated 23-9-1999 said to have been executed by one Sri Byranna and pursuant to the same, plaintiff has got the revenue records mutated to her before Revenue Authorities as per Mutation Register Extract i.e. M.R. No. 1/99-2000, dated 30-10-1999. RTC produced by the plaintiff for the year 2010-11 would indicate name of plaintiff is reflected in column 12(2) i.e., person who is in possession of the property has been indicated. That apart, other revenue records namely Revisional Settlement Akarband produced by the plaintiff also would indicate that plaintiff is in possession of suit schedule property. Thus, plaintiff having established prima facie case in her favour and also her possession by virtue of entry found in the RTC records in column 12(2) and same having not been rebutted by first defendant, Trial Court found that balance of convenience is in favour of plaintiff and in the event of first defendant not being restrained by order of temporary injunction, it is the plaintiff who would be put to irreparable loss and injury particularly when first defendant is asserting title to the property and threatening to dispossess plaintiff from suit schedule property and as such, having found that all the three necessary ingredients for grant of temporary injunction being in favour of plaintiff, has granted the same. First Appellate Court has examined the facts and documents produced by the parties afresh and has found that there is no error committed by Trial Court in granting temporary injunction. I do not find any error committed by Trial Court or Appellate Court. There is no merit in this writ petition and accordingly it is hereby rejected. It is needless to state that observations made by Trial Court as well as this Court is for the limited purpose of considering I.A. No. I. Ordered accordingly.