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2020 DIGILAW 656 (KAR)

Lalithamma And Others v. V. Shobha

2020-03-06

PRADEEP SINGH YERUR

body2020
JUDGMENT 1. Heard the learned counsel for the appellants and the learned counsel for the respondent. 2. The parties shall be referred as per their status in the trial Court for the sake of convenience. 3. This appeal is filed by the defendants challenging the order dated 18.11.2019 passed by the Court of 37th Addl. City Civil and Sessions Judge, Bengaluru (CCH-38) in OS.No.1164/2019 whereby an application filed under Order 39 Rule 1 & 2 read with Section 151 of CPC by the plaintiff came to be allowed. 4. The brief facts of the case are as follows: The plaintiff has filed a suit against the defendants for the relief of permanent injunction. It is the case of the plaintiff that the suit schedule property, which come within the purview of Sy. No.56/2B was acquired by BEML Society, formed layout and distributed sites to its members. The brother of the plaintiff, by name, V.Manjunath, acquired one site, which came to be registered in his name by virtue of registered sale deed on 05.04.1993, thereby he became the absolute owner of the suit schedule property. Thereafter, a rectification deed was made and executed by BEML Society in favour of the brother of the plaintiff. It is the case of the plaintiff that her brother V.Manjunath executed a registered gift deed dated 14.11.2008 in her favour and delivered the physical possession to her on the same day. Pursuant to which the plaintiff became the absolute owner in possession and enjoyment of the suit schedule property. 5. It is the case of the plaintiff that she obtained Uttara Patrike, Katha certificate and started paying taxes to BBMP pertaining to the suit schedule property. She also obtained sanctioned plan for the construction of a residential building on 03.02.2019 from BBMP. On 03.02.2019 at about 11.30 pm when she was getting some construction work the defendants interfered with her property proclaiming that the entire property belongs to their family and obstructed to the construction work being carried on by the plaintiff. 6. In view of this obstruction and interference by the defendants with the plaintiffs peaceful possession and enjoyment of the suit schedule property and the construction activities, the plaintiff filed a suit for permanent injunction against the defendants. 7. 6. In view of this obstruction and interference by the defendants with the plaintiffs peaceful possession and enjoyment of the suit schedule property and the construction activities, the plaintiff filed a suit for permanent injunction against the defendants. 7. The defendants entered appearance and filed their written statement, inter alia, denying the allegations made that the plaintiff is not the owner of the suit schedule property and taking plea that there is no absolute right, title or interest with regard to the suit schedule property in favour of the plaintiff as the entire larger extent in Sy. No. 56 of Mylasandra Village, Kengeri Hobli, Bengaluru South Taluk to an extent of 1 Acre 16 guntas was sold in favour of one Huchappa S/o Buddanna @ Papanna under the sale deed dated 14.04.1947. The defendants further contended that said Huchappa is none other than the father in law of the 1st defendant and grand father of the other defendants. It is further contended that the said Huchappa during his life time appears to have executed a GPA in favour of the society (BEML Society) in respect of 1 Acre 1 gunta out of 1 Acre 16 guntas for alienation. However, the society has illegally sold the sites to third parties without any layout plan, right and title over the said properties. It is further contended that Huchappa has further retained 15 guntas of land after the alleged alienation of 1 Acre 1 gunta and that 15 guntas of land which was retained pertains to Sy. No. 56/2B. Thereafter, on the death of said Huchappa, the said 15 guntas of land was inherited by his son Narayanappa. Narayabnappa, is none other than the husband of the 1st defendant and father of the other defendants. It is also contended that on the death of said Narayanappa, the katha was mutated in the name of his wife, the 1st defendant herein. Thus, subsequently on the death of said Narayanappa, the defendants have acquitted the right, title and interest over the 15 guntas of land in Sy. No. 56/2B. It is further contended that in the above circumstance the plaintiff does not have any right, title or interest over the suit schedule property. 8. Thus, subsequently on the death of said Narayanappa, the defendants have acquitted the right, title and interest over the 15 guntas of land in Sy. No. 56/2B. It is further contended that in the above circumstance the plaintiff does not have any right, title or interest over the suit schedule property. 8. The plaintiff also filed an application under Order 39 Rules 1 and 2 read with Section 151 of CPC, praying to restrain the defendants from interfering or meddling or obstructing with the plaintiffs lawful, physical and actual possession of the suit schedule property. The defendants filed their statement of objections taking the same plea, more or less, stated in the written statement, which are stated supra. 9. Considering the arguments of the learned counsel before the trial Court, the trial Court came to a conclusion that there is prima facie case made out and accordingly allowed the application. Aggrieved by the same the defendants have approached this Court, challenging the legality and propriety of the said order. 10. I have heard the learned counsel for appellants and the respondent. Perused the materials placed before this Court. 11. It is contended by the learned counsel for defendants that the trial Court has mechanically passed the order of injunction without appreciating the facts and considering the documents produced by them. He strenuously argued that though the BEML Society had formed sites including one under Sy. No. 56/2B, there was no approval obtained by them from the concerned Grama Panchayath for formation of layout plan. He further contended that the GPA was executed in favour of BEML Society, which was not authorized for alienation of sites and therefore, production of any document titled as valid conveyance to Sy. No. 56/2B, cannot be legitimate conveyance. 12. The learned counsel for defendants has further contended that merely by producing the lay out plea, which is not proved by any competent authority and production of certain revenue records will not render any right, title or interest over the suit schedule property to the plaintiff. The learned counsel further contended that the plaintiff has not come before the Court with clean hands and has failed to prove set of facts before the Court with regard to the antecedents of the property and its owner and the status of the property being an agricultural in nature and its conversion to non-agricultural purpose. The learned counsel further contended that the plaintiff has not come before the Court with clean hands and has failed to prove set of facts before the Court with regard to the antecedents of the property and its owner and the status of the property being an agricultural in nature and its conversion to non-agricultural purpose. He further contended that the trial Court has not considered all these material facts and has passed an order, which is highly arbitrary, illegal and contrary to the law laid down by the Honble Apex Court and therefore, the same deserves to be set aside. 13. Per contra, the learned counsel for respondent contended that the order passed by the trial Court is a reasoned order, after consideration of all the material documents pertaining to the suit schedule property and after appreciation of the same the trial Court has come to a right conclusion that the plaintiff has made out a prima facie case and that the balance of convenience lies in her favour and has allowed the application. 14. After giving my anxious consideration to the submissions made by the learned counsel for the plaintiff and the defendants and after going through the material on record, what requires to be analysed by this Court is as to whether the order passed by the trial Court is sustainable in law, based on the rival contentions and the materials produced by the parties to the lis. 15. After careful examination, there is no dispute of the fact that there is a registered sale deed in favour of one V.Manjunath, as far back as 1993 and the said Manjunath has executed a registered gift deed in favour of the plaintiff herein on 14.11.2008. Thereafter, the plaintiff has obtained an Uttara Patrika and Katha certificate and she is being paid taxes to the BBMP. It is further noticed that a sanctioned plan for construction of a residential building was obtained by the plaintiff. It is further noticed that the plaintiff has also produced several documents including copies of the agreement of sale, registered GPA, Official Memorandum, letter from the Special Deputy Commissioner, Encumbrance certificate, tax paid receipt and approved plan. It is further noticed that a sanctioned plan for construction of a residential building was obtained by the plaintiff. It is further noticed that the plaintiff has also produced several documents including copies of the agreement of sale, registered GPA, Official Memorandum, letter from the Special Deputy Commissioner, Encumbrance certificate, tax paid receipt and approved plan. Though, it is seriously contended by the defendants that the sanctioned plan is bogus and created documents and all revenue records are fabricated documents, same requires to be tested and tried before the Civil Court by adducing relevant necessary evidence and production of the documents. Therefore, this Court will not be in a position to appreciate such arguments as a gospel truth, for which the detailed trial is required. It is also noticed that as per the statement made by the parties, the suit schedule property is a vacant side and under such circumstance unless the parties adduce evidence to show as to who is the rightful owner, this Court cannot merely appreciate on the basis of the submission made across the Bar. 16. In order to consider the application for grant of temporary injunction three main ingredients are to be looked at, they are, (1) Whether plaintiff has made out a prima facie case; (2) Whether the balance of convenience lies in favour of the plaintiff; & (3) Whether the plaintiff will be put to irreparable injury. 17. Considering the facts and circumstance of the case, the submissions made by the learned counsel across the Bar and the documents produced, there is no denial of the fact that the plaintiff has a registered gift deed in her favour and she is paying taxes towards the suit schedule property, which prima facie establish that the plaintiff is in possession and enjoyment of the suit schedule property. 18. 18. The learned counsel for the appellants relied on the following judgments: '(1) (2012) 1 Supreme Court Cases 656 - Suraj Lamp and Industries Private Limited (2) through Director v. State of Haryana and Another; 2) (2019) 6 Supreme Court Cases 82 - Jagadish Prasad Patel (Dead) through Legal Representatives and Another v. Shivnath and Others; 3) (2008) 4 Supreme Court Cases 594 Anathula Sudhakar v. P. Buchi Reddy (Dead) By LRs and Others; 4) 2004 (1) KCCR 662 Karnataka High Court - K. Gopala Reddy (deceased) by LRs v. Suryanarayana and Others; 5) (2011) 12 Supreme Court Cases 220 Rangammal v. Kuppuswami and Another.' 19. There is no quarrel with regard to the law laid down by the Honble Apex Court, but in the present facts and circumstances of the case, it may not be applicable for the reason that the prima facie title or title has not yet been decided by the trial Court. The prima facie case is decided by the trial Court on the basis of the prima facie materials produced by the plaintiff, some of which documents are registered documents, which are not denied and the plaintiff being in physical possession and enjoyment of the suit schedule property and under taking to put up construction, the balance of convenience, the prima facie case and the irreparable injury theory, would tilt more towards plaintiff rather than the defendants. 20. The contentions raised by the learned counsel for appellants though appears to be very pertinent to the facts and circumstances of the case, the same will have to be urged and agitated before the trial Court. It may not be appropriate for this Court to look into these documents thread bear. 21. What requires to be seen here is whether the prima facie case is made out by the plaintiff and prima-facie title over the suit schedule property. I am of the opinion that the plaintiff has established and made out a prima facie case for grant of temporary injunction and accordingly, the trial Court has rightly appreciated the same and allowed the application of the plaintiff by granting temporary injunction, which cannot be found fault with and the same deserves to be affirmed and upheld. 22. I am of the opinion that the plaintiff has established and made out a prima facie case for grant of temporary injunction and accordingly, the trial Court has rightly appreciated the same and allowed the application of the plaintiff by granting temporary injunction, which cannot be found fault with and the same deserves to be affirmed and upheld. 22. I deem it proper to state here that the findings given by this Court, shall be restricted purely for the purpose of deciding this application and the trial Court shall not be influenced by any of the observations and remarks made hereinabove while deciding the suit on the main matter. All contentions of the plaintiff and the defendants are kept open. 23. Accordingly, the appeal is devoid of merits and is dismissed. No order as to costs.