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2020 DIGILAW 1114 (KAR)

Balawant v. Poojya Shri Dr Sharanabasavappa Appa

2020-06-17

P.N.DESAI

body2020
JUDGMENT P.N.Desai, J. - The appellant has preferred this appeal against the order passed by the learned Senior Civil Judge Jewargi on I.A.No.XIII U/Or.39 Rule 1 & 2 of Code of Civil Procedure in O.S No.4/2016 dated: 20-04-2018 restraining the defendant No.2 from demolishing or altering the suit schedule property till the disposal of the suit. 2. Aggrieved by the said order the defendant No.2 has preferred this appeal U/Or.43 Rule 1 of Code of Civil Procedure with a prayer to set aside the impugned order and reject I.A.No.XIII U/Or.39 Rule 1 & 2 of C.P.C 3. Respondent No.1 in the appeal is the plaintiff before the trial court and respondent No.2 is the defendant No.1 before the trial court. For the purpose of convenience, the parties will be referred as plaintiff and defendants as per the respective ranks before the trial court. It is evident that, the plaintiff has filed the suit for declaration that, he be declared as owner of the suit property and also seeking relief of possession of the suit property and also for relief of permanent injunction and also for damages. 4. The brief contention of the plaintiff before the trial court is that, the suit property is the house bearing panchayat No.236 237 (New No.2-102 & 2-103) situated at Aralgundagi village of Jewargi Taluka. It is also called as 'Mahamane' situated within the boundaries shown in the schedule attached to the plaint. The contention of the plaintiff is that, Lord Sharanbasasva is the sole trustee and pattedar of Sansthan of Sharanbasveshwar Aralgundagi and it is birth place of Lord Sharanbasveshwar. The suit property where Lord Sharanbasveshwar was born came to be known as 'Mahamane' and plaintiff is the successor and legal representative of Lord Sharanbasveshwar and succeeded to the suit property. He has further contended that, the plaintiff and his predecessor in title have been performing religious rites and rituals and maintained Anna-dasoha and Nandadeepa in the suit property for the past 190 years without obstruction and intervention by anybody. It is his case that, defendant No.2 without having any right or interest over the suit property has initiated so many legal proceedings based on false and created story. Inspite of request made by his ancestors the defendant No.2 did not stop the activities. It is further contended that, the defendant No.2 illegally dispossessed the plaintiff from the suit property. It is his case that, defendant No.2 without having any right or interest over the suit property has initiated so many legal proceedings based on false and created story. Inspite of request made by his ancestors the defendant No.2 did not stop the activities. It is further contended that, the defendant No.2 illegally dispossessed the plaintiff from the suit property. It has caused hindrance to the suit property. Defendant No.2 denied the title of the plaintiff over the suit property. The plaintiff has instituted suit for declaration and also for possession. 5. It is further contended that, on 18-04-2018 by taking undue advantage of the illegal possession of the suit property, the defendant No.2 collected materials for construction of the building in order to alter the structure of the suit property permanently and in order to see that the plaintiff failed to prove Issue No.2. It is further contended that, if the defendant No.2 permanently altered the structure then the plaintiff will not be in a position to prove Issue No.2 and if the suit property is not maintained or preserved as it is till the disposal of the suit, then the plaintiff will be put to irreparable loss and injury. So he filed this interim application I.A.No.XIII U/Or. 39 Rule 1 & 2 of Code of Civil Procedure seeking temporary injunction restraining defendant No.2 with a prayer not to alter or demolish the suit property till the disposal of the suit. 6. Defendant No.2 appeared through his counsel and filed written statement and also filed objections to I.A.No.XIII. He has denied the averments of the plaint as all false. He has also denied that the plaintiff or his predecessors were in possession of the suit property at any point of time. On the other hand it is contended by the defendant No.2 that, the property was seized by the Government and after making necessary enquiry the suit property was granted in the name of his ancestors. Hence defendant No.2 is absolute owner and in lawful possession of the suit property. It is further contended that, a Trust by name Sri.Sharanabasveshwara Charitable Trust and Welfare Trust, Aralgundagi was formed and the suit property is under the supervision of the said trust and villagers of Aralagundagi village the suit property is maintained. Hence defendant No.2 is absolute owner and in lawful possession of the suit property. It is further contended that, a Trust by name Sri.Sharanabasveshwara Charitable Trust and Welfare Trust, Aralgundagi was formed and the suit property is under the supervision of the said trust and villagers of Aralagundagi village the suit property is maintained. It is further contended that, only to drag on the proceedings of the suit at the stage of evidence this application is filed and the trial is already commenced and it is in progress. He has further contended that, the trial court relying on the tax paid receipts and revenue receipts granted temporary injunction order by coming to the conclusion that, the plaintiff has got prima-facie case and balance of convenience in his favour. But it is the defendant who will be put to hardship if the temporary injunction is granted. With these main contentions defendant No.2 has prayed to reject I.A. No.XIII. 7. I have heard the learned counsel for the appellant and learned counsel for respondent No.1 and perused the material placed before the Court and also the order passed by the trial court. 8. From the above materials, pleadings and arguments the point that would arise for my consideration is:- "Whether the order passed by the trial court granting temporary injunction is illegal, arbitrary, capricious and needs interference of this Court?. 9. It is settled principle of law that, U/Order 43 Rule 1(r) of Code of Civil Procedure, the Appellate Court can interfere in the order passed by the trial court U/Or.39 Rule 1 & 2 of Code of Civil Procedure which is discretionary relief only if it is found that the order passed by the trial court is perverse, illegal, arbitrary and not based on the settled principles regarding grant or refusal of the temporary injunction. It is also settled principle of law that even if the Appellate Court comes to other view it cannot substitute the said view unless the order of the trial court is arbitrary one. It is to be kept in mind that, the interim applications are filed and interim relief is granted in aid of the main relief to be granted by the court. It is to be kept in mind that, the interim applications are filed and interim relief is granted in aid of the main relief to be granted by the court. The interim orders are granted so as to preserve the subject matter of the suit intact till the disposal of the suit, so that if ultimately the party succeeds he must be in a position to enjoy the fruits of the decree if any passed in his favour. So, keeping in mind these settled principles let me consider the order passed by the learned Senior Civil Judge Jewargi. 10. Admittedly the plaintiff has filed suit for declaration and he has also sought relief of possession of the suit property contending that, he was dispossessed on 02-12-2015 so he has filed suit in the year 2016. In the meanwhile when the suit was pending he has filed this I.A. No.XIII contending that, on 18-04-2018, the defendant No.2 collected some materials for construction of the building in order to alter structure of the suit property so that the suit property will be altered permanently and he may not in a position to prove Issue No.2. 11. I have perused the order passed by the Trial Court wherein the learned trial Judge has culled out the contention of the plaintiff and also defendant No.2. The learned trial Judge has framed three points for consideration i.e., prima-facie case, balance of convenience and also irreparable loss or hardship going to be caused and answered all the points in favour of the plaintiff. While answering so the trial Judge observed that, there are photographs produced along with I.A.No.XIII which indicates that, there is an attempt made by the defendant No.2 for making some sort of construction in the suit property and alteration. The learned trial Judge has relied upon the affidavit in support of I.A.No.XIII and it is also evident that admittedly issue No.2 is framed casting burden on plaintiff. 12. It is not disputed by both the parties that lord Sharanbasveshwar born at Aralgundagi village i.e. in the suit property, so both of them admit that it is the house originally belongs to Sharanbasveshwar. Both the plaintiff and defendant No.2 are claiming as successor to the said lord Sharanbasveshwar. Anyway that mater will have to be gone into before the trial court while considering the title of the suit property. Both the plaintiff and defendant No.2 are claiming as successor to the said lord Sharanbasveshwar. Anyway that mater will have to be gone into before the trial court while considering the title of the suit property. But at this stage that aspect cannot be taken into consideration. Only the court has to see, whether there is a prima-facie case to grant interim temporary injunction then only it has to consider the next point i.e., the balance of convenience and comparative hardship. The learned Senior Civil Judge has relied upon several documents and he has mentioned at paragraph No.14 of the order that, the property extract in respect of suit property filed on behalf of the plaintiff shows the name of plaintiff and his father as owners and possessors of the suit property from the year 1969-70 to till date. The trial court has also referred to correspondence between the plaintiff and revenue officials of the Government and the order passed by the Chief Secretary, Revenue Department State of Karnataka on 27-01-2012 wherein the suit property was removed from the list of religious and charitable trust and those documents indicates that, the plaintiff has made several correspondence with the Government in respect of suit property for long time. The trial court has also referred to tax paid receipt which indicates that, the plaintiff has paid tax to the concerned panchayat in respect of suit property. So, based on the affidavit and considering the pleadings and also looking into the burden on the plaintiff regarding issue No.2 and also based on documents placed before the court while considering the interim application the learned trial Judge has come to the conclusion that, the plaintiff has proved prima-facie case to grant temporary injunction only to the extent that, the subject matter of the suit shall be kept intact and it shall not be altered as it is used till the final disposal of the case. 13. The learned trial Judge has relied upon two decisions of this court viz, in between Smt. Rathjnamma Vs B.A Srinivasa Gupta and others,1991 1 KarLJ 577 in between Fakirsab Vs Syedusab, (2004) ILR(Kar) 4076 , wherein the principles regarding grant of temporary injunction is stated by this court. 13. The learned trial Judge has relied upon two decisions of this court viz, in between Smt. Rathjnamma Vs B.A Srinivasa Gupta and others,1991 1 KarLJ 577 in between Fakirsab Vs Syedusab, (2004) ILR(Kar) 4076 , wherein the principles regarding grant of temporary injunction is stated by this court. The purpose to preserve the suit property in dispute till the legal rights of the parties are settled that is to keep things in status quo pending litigation so that the suit is not rendered infractuous by unilateral act of the party. Where party seeking temporary injunction has satisfied Court that there is question of law or fact to be tried in suit, that Court's interference is necessary to save him from irreparable injury and that comparative mischief which is likely to cause from withholding injunction will be greater than that which is likely to arise from granting it, party is entitled to relief. In another decision this court has clearly stated the principles as to the need to protect and preserve the suit property till the final decision of the suit. Based on the principles enunciated by this court and relying on these two decisions the trial court has considered that, it is the plaintiff who will be having balance of convenience in his favour and if the order of temporary injunction is not granted and if the construction took place and the nature of the property is altered then there is likelihood of very purpose of filing of the suit may be frustrated or become infractuous or it may give rise to multiplicity of proceedings. 14. Admittedly the appellant has not stated what is the type of injury that is going to be caused to him if the suit property which is called as 'Mahamane' is not altered or not demolished till the final decision of the suit. On the other hand, the mischief that is going to be caused if ultimately temporary injunction order is not granted if the defendant No.2 takes steps to alter the suit property and definitely it will cause irreparable loss and hardship to the plaintiff. However ultimately if he succeeds no loss, hardship or injury will be caused to the defendant No.2 if the suit property is preserved as on the date of suit till disposal status quo is maintained in respect of the suit property. 15. However ultimately if he succeeds no loss, hardship or injury will be caused to the defendant No.2 if the suit property is preserved as on the date of suit till disposal status quo is maintained in respect of the suit property. 15. The defendant No.2 contends that, he is owner and in possession of the suit property. The plaintiff contends that, he is the successor and legal representative of Lord Sri.Sharanbasveshwar. So till the title of either parties are considered by trial court and declaration is to be given, the suit property is to be preserved without any alteration as it is as on the date of suit. No hardship or any type of injury is going to be caused to the defendant No.2. 16. It is submitted by both the counsels that, already trial has commenced. The records of case disclose that, the plaintiff is examined himself and one witness is already examined on his behalf. The trial is going on and when already the matter has reached the stage of trial and already the plaintiff has led the evidence, both the parties shall make all endeavor to assist for early disposal of the case. So till then the order of temporary injunction which is granted only to the limited extent that is only to preserve the subject matter of the suit that is the property in status-quo i.e., not to demolish or alter or to change the suit property is continued till disposal of suit, in my considered view no hardship will be caused to the appellant. 17. The appellant has filed I.A.No.II/2018 U/Order 41 Rule 27 R/w Sec.151 of C.P.C and produced the Judgment of trial court and first appellate court in respect of other cases between them. Ofcourse it is admittedly in respect of not suit property, it is in respect of some other property. The appellant counsel contended that in order to show the conduct of the plaintiff he has produced the said documents. But at this stage, while considering the interim application or the nature of temporary injunction order those documents are not necessary and relevant. Hence the said application is dismissed. 18. The learned counsel for the appellant has relied upon a decision of Hon'ble Supreme Court reported in Civil Appeal Nos.3128-3129 of 2008 ( Arising out of SLP ( C ) Nos.10928-10929 of 2007) in case of Mandali Ranganna and Ors. Hence the said application is dismissed. 18. The learned counsel for the appellant has relied upon a decision of Hon'ble Supreme Court reported in Civil Appeal Nos.3128-3129 of 2008 ( Arising out of SLP ( C ) Nos.10928-10929 of 2007) in case of Mandali Ranganna and Ors. Vs T. Ramchandra and Orts, wherein the Hon'ble Supreme Court has reiterated the principles regarding grant of temporary injunction wherein the Hon'ble Supreme Court has observed that construction going to be put up on suit properties Shall be subject to decision in suit Whether order passed by the High Court needs interference, it is held "no", it is answered in the negative stating that, the respondents are allowed to carry construction but same shall be subject to the decision of the suit. I have gone through the said decision. The principles stated by the Hon'ble Supreme Court are very well settled, but here in this case what is the necessity for the appellant to alter or construct the suit property at this stage is not forth-coming. During the pendency of the suit the defendants intends to make any alteration or construction which is needed or not is also not forth-coming. Here still the construction has not come up, it is only a preparation made by the appellant which made the plaintiff to file the interim application. Therefore, the principles stated by the Hon'ble Supreme Court in the above said decision are not applicable to this case. 19. Learned counsel for appellant argued that Trust is a necessary party to the suit, but such a contention cannot be entertained at the time of considering interim application for grant of temporary injunction order. It is for the concerned parties and for the concerned Court, to consider such contentions if any urged and permissible under law, but not at this stage. 20. The learned counsel for the respondent relied upon the decision of Hon'ble Supreme Court reported in AIR 2005 Supreme Court 104 in Civil Appeal No.6792 of 2004 (arising out of SLP ( C) No.14972 of 2004, dated: 15-10-2004 in case of Maharwal Khewaji Trust (Regd.) Faridkot Vs Baldev Dass wherein the Hon'ble Supreme Court considered powers of the Appellate Court U/Order 43 Rule 1 while dealing with Order 39 Rule 1 CPC to grant or order of statusquo of the property during the pendency of the litigation. It is also observed by the Hon'ble Supreme Court that, simply proceedings are likely to take long time is no exceptional circumstances to allow changes by imposing conditions. So, in view of the principles referred above, I am of the considered view that, the order passed by the learned Senior Civil Judge Jewargi is legal and based on sound principles regarding grant or refusal of the injunction. The learned trial Judge has given reasons for each point as to how the plaintiff has got prima-facie case and how the balance of convenience is in favour and considered comparative hardship that is going to be caused to both the parties and answered that the plaintiff will be put to great hardship and much convenience if temporary injunction as sought is not granted. I find no grounds to interfere with the reasoned order passed by the learned Senior Civil Judge, Jewargi. Hence appeal being devoid of merits is liable to be dismissed. In the result I pass the following: ORDER Appeal is dismissed. No order as to cost.