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2016 DIGILAW 819 (KAR)

Antony Sequeira v. Gopalakrishna Devadiga

2016-11-05

B.VEERAPPA

body2016
ORDER : B. Veerappa, J. The petitioner/plaintiff has filed the above writ petition against the concurrent findings of the Courts below allowing the defendant's application for grant of temporary injunction under Order 39, Rule 1 and 2 of Code of Civil Procedure by order dated 27.09.2014 in O.S.No.271/2012 on the file of the Prl. Civil Judge and JMFC, Bantwal, D.K., confirmed by the Prl. Senior Civil Judge and JMFC, Bantwal, D.K. in M.A.No.18/2014by order dated 04.07.2015. 2. The plaintiff filed suit in O.S.No.271/2012 for possession of plaint schedule property i.e., 5 cents in Sy.No.137/2 with a house bearing No.7-157, but not mentioned any description of the property, contending that he is the owner of the said 5 cents and for a direction to the defendant to quit and surrender the vacant possession of the property to the plaintiff and also for damages and mesne profit at the rate of Rs. 100/- per day from 31.11.2009 till delivery of possession. 3. The defendant filed written statement along with counter claim, denied the entire plaint averments and contended that the defendant has been in possession and enjoyment of the entire 'A' schedule property more fully described in the counter claim, the plaintiff is trying to interfere with the possession and enjoyment of the defendant by misusing his bogus sale deed, etc., 4. During pendency of the suit, defendant filed I.A.No.3 for temporary injunction in respect of counter claim 'A' schedule property contending that he is in possession and enjoyment of the same. The said application was resisted by the plaintiff by filing objection, reiterating the averments made in the plaint. 5. The Trial Court, considering the application and the objections, has recorded a finding that the defendant proved that he has a prima-facie case, proved balance of convenience and also proved that if injunction is not granted, he will be put to irreparable loss and injury. Accordingly, the Trial Court, by the order dated 27.09.2014, allowed the application filed under Order 39, Rule 1 and 2 granting temporary injunction restraining the plaintiff from in any way trespassing and cutting any tree growths from the written statement schedule property or from taking forcible possession of written statement schedule property till the disposal of the suit. 6. Aggrieved by the said order passed in the suit, plaintiff filed M.A.No. 18/2014 on the file of the Prl. 6. Aggrieved by the said order passed in the suit, plaintiff filed M.A.No. 18/2014 on the file of the Prl. Senior Civil Judge and JMFC, Bantwal, D.K. After hearing both the parties, the learned Judge concurred with the finding of fact and by the impugned order dated 04.07.2015, dismissed the appeal. Against the said concurrent findings of fact, the present writ petition is filed by the plaintiff. 7. I have heard the learned counsel for the parties to the lis. 8. Sri. K. Anandaram, learned counsel for the petitioner/plaintiff vehemently contended that the impugned orders passed by the courts below granting temporary injunction is without any basis, both the Courts below failed to notice that plaintiff is in possession and enjoyment of the suit schedule property and therefore, he filed the suit only respect of 5 cents which was in possession of defendant and not the entire property. He further contended that both the courts below failed to notice that a plain reading of the written statement discloses that defendant's claim under Land Reforms Act has been rejected and has not claimed title to the land and his case is highly improbable and doubtful. Therefore, both the Courts below are not justified in granting temporary injunction in favour of the defendant when the case of the defendant is doubtful and there is no prima facie case made out by the defendant. Therefore, sought to set-aside the impugned orders passed by the Courts below, by allowing the writ petition. 9. Per contra, Sri. P.P. Hegde, learned counsel for the respondent/defendant sought to justify the impugned order and contended that the very suit filed by the plaintiff without identity is not maintainable and the suit filed only in respect of 5 cents and not the entire property and admittedly, the defendant is in possession of schedule 'A' property more fully described in the counter claim and he has produced document to prove the same. Both the Courts concurrently held that defendant is in possession and this Court cannot exercise powers under Article 227 of the Constitution of India to interfere with the impugned orders and therefore, sought to dismiss the writ petition. 10. Both the Courts concurrently held that defendant is in possession and this Court cannot exercise powers under Article 227 of the Constitution of India to interfere with the impugned orders and therefore, sought to dismiss the writ petition. 10. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for consideration is : "Whether the Courts below are justified in granting temporary injunction in favour of the defendant in respect of the schedule 'A' property more fully described in the counter claim, in the facts and circumstances of the case ?" 11. It is undisputed fact that the plaintiff filed O.S. No.271/2012, only in respect of 5 cents in Sy.No. 137/2 with a house bearing No.7-157 and admittedly, no boundary is given and in the entire plaint, he has not stated anything about the remaining portion of the property except stating that he is in possession of 5 cents and has not produced any material before the Court. 12. It is the specific case of the defendant before the Trial Court by filing counter claim that he has been in possession of the entire 'A' schedule property described in the counter claim and plaintiff is trying to interfere on the basis of the bogus sale deed. The rival contentions urged by both plaintiff and defendant has to be adjudicated by the Trial Court after completion of evidence and considering both oral and documentary evidence. The Trial Court, while considering the application I.A.No.3 filed under Order 39, Rule 1 and 2, has recorded a specific finding that admitted fact in this case is that defendant is residing in the house situated in the written statement schedule property. The averment indicates that defendant has occupied the house which already existed in encroached portion of land. Contrary to the said averment, it is pleaded in the plaint that defendant is in permissible occupation of the house only. It is necessary to rely upon the legal notice dated 30.11.2009 issued by Father Muller's Charitable Institution to the defendant, wherein in para No.2 of the said notice it is stated that defendant has illegally encroached a portion of the property and illegally built a house in the said property. Hence, according to vendors of the plaintiff, defendant has constructed the said house in the suit property. Hence, according to vendors of the plaintiff, defendant has constructed the said house in the suit property. However, both plaint averments and notice are very silent about as to when exactly the defendant has encroached the said property and built a house. It is known thing that a house cannot be built in one or two days. The very production of legal notice shows that plaintiff was aware of exchange of notice between his vendor and the defendant. However, the sale deed produced by the plaintiff is very silent about the possession of portion of land and house by the defendant. In fact, there is no whisper with respect to existence of house in Sy.No. 137/2. this aspect itself raises some doubt about genuineness about sale transaction between the plaintiff and his previous vendor. 13. The Trial Court further recorded a finding that the RTC pahanis for the year 1968-69 and few years thereafter shows that father of plaintiff was in possession of the written statement schedule property and owner is shown as Father Muller's Charitable Institution. However, Form No.7 shows that applicant was Sankappa Devadiga, Son of Rama Devadiga and not Rama Devadiga himself. These documents at this juncture probabalises the case of the defendant in respect of the suit schedule property. Once possession of the defendant's father is established through RTC pahanis of the year 1968-69, dispossession has to be shown by the plaintiff. Therefore, it requires full-fledged trial. Of course, both plaintiff and defendant have to establish during trial of their respective cases. At this juncture, it prima facie appears that defendant is in possession of written statement schedule property. 14. The said findings of fact recorded by the Trial Court is confirmed by the lower Appellate Court by exercising discretion while granting injunction and specifically held that the Trial Court has considered all these facts and balance of convenience lies in favour of the defendant and it will lead to multiplicity of proceedings and cause hardship and irreparable loss to defendant if temporary injunction is not granted. When the documents pertaining to undisputed point of time reveals the possession of the written statement schedule property by the defendant, then certainly, he can prevent any one including the true owner. When the documents pertaining to undisputed point of time reveals the possession of the written statement schedule property by the defendant, then certainly, he can prevent any one including the true owner. Therefore, there is no illegality in the order passed by the Trial Court and it is a discretionary order, unless and until, it is shown that the order of the Trial Court is capricious and illegal, same cannot be interfered by the Appellate Court. 15. Both the Courts while considering the equitable order of temporary injunction under Order 39, Rule 1 and 2, concurred that defendant is in possession and enjoyment of written statement 'A' schedule property, and same is in accordance with law. Accordingly, the point raised for consideration in this writ petition has to be answered in the affirmative holding that the Courts below are justified in granting the temporary injunction. 16. For the reasons stated supra, the impugned order passed by the Trial Court, affirmed by the lower appellate Court granting temporary injunction in favour of the defendant is based on material evidence on record. Same is in accordance with law. Petitioner/plaintiff has not made out any ground to interfere with the impugned orders in exercise of the powers under Article 227 of the Constitution of India. Accordingly, writ petition is dismissed. 17. However, it is made clear that the Trial Court while deciding the suit, shall not be influenced by any of the observations made by this Court and the lower Appellate Court, and decide the suit strictly in accordance with law.