IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13th DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE PRADEEP SINGH YERUR M.F.A. No.6193 OF 2019 (CPC) BETWEEN:
1. Smt Chennamma W/o late Munirama, Aged about 58 years, 2. Anandamurthy, S/o late Munirama, Aged about 35 years, Both are temporarily Residing at Gollahalli Village, Jigani Hobli, Anekal Taluk, Bengaluru Urban District.
And also at Singasandra Village, Madivala Post, Begur Hobli, Bengaluru South Taluk, Bengaluru – 560 068 (By Sri Rakshit K.N., Advocate) …Appellants AND:
1. Sri Gurumurthy, S/o K.T.Eshwararao, Aged abour 41 years, R/at No.19/20, 24th Main, 3rd Cross, BTM 2nd Stage, B.G. Road, Bengaluru – 560 076.
2. M/s Karnataka Bank Ltd. Represented by its Branch Manager, BTM Layout, 2nd Stage, Bengaluru – 560 076.
...Respondents *** This Miscellaneous First Appeal is filed under Order 43 Rule 1 (r) of Code of Civil Procedure, 1908 against the order dated 15.07.2019 passed on I.A. No.2 in O.S. No.485/2019 on the file of Principal City Civil and Sessions Judge, Bengaluru, rejecting I.A. No.2 filed under Order 39 Rules 1 and 2 of CPC r/w Sec. 151 CPC.
This appeal coming on for Admission this day, the Court, delivered the following:
JUDGMENT Heard the learned counsel for the appellants and learned counsel for the respondents.
2. This is the appeal filed by the plaintiffs aggrieved by the order passed by III Additional City Civil and Sessions Judge, Bengaluru.
3. The appellants herein have filed a suit against the defendants for relief of permanent injunction and secondly restraining respondent No.1 from putting up further construction in the suit schedule property belonging to the appellants. It is the case of the appellants that they are the absolute owner of the suit schedule property having acquired the same through registered Partition Deed dated 31.12.2018 and that husband of appellant No.1 had acquired the property by way of Will dated 15.10.1998, which was executed by one Nanjundappa and thereafter, Sri. Munirama, who is the father of appellant No.2 had got his name changed in the katha and he put up ACC sheet house in the suit schedule property. The appellants further submitted that after death of Sri. Munirama, they are in peaceful possession and enjoyment of the suit schedule property. It is the case of the appellants that respondent No.1 is a stranger and he has no manner of right, title, interest over the suit schedule property and that erstwhile vendors of defendant No.1 do not have right, title, interest over the suit schedule property. It is submitted by learned counsel for the appellants that defendant No.1/respondent No.1 had secured the suit schedule property by virtue of Sale Deed dated 23.03.2018 from one Saravana, who inturn had transferred the title from one Sri. Manjunath.
4. It is stated that respondent No.1 thereafter mortgaged the said suit schedule property to respondent No.2 on 28.12.2018. Further, it is the case of the appellants that some unknown persons are trying to dig trenches to put up construction in the suit schedule property and when appellants came to know about the same on 10.01.2019, they tried to reason out the same with respondent No.1, who did not yield to the advice and accordingly, the suit came to be filed by the appellants on 18.01.2019 for the relief stated above.
5. Respondent No.1 has filed the statement of objections denying the contentions of the appellants and denied the existence of the property so claimed by the appellants and stated that he has put up Shed Roof house in the suit schedule property and stored building materials and putting up the construction after having availed loan from respondent No.2. Respondent No.1 has claimed that he is the owner of the property by virtue of the registered Sale Deed and accordingly, sought for dismissal of the suit.
6. Along with the plaint, appellants have filed two applications for restraining respondent No.1 from interfering with the peaceful possession and enjoyment of the said property and secondly for restraining respondent No.1 from putting up construction in the suit schedule property. Objections were filed by respondent No.1 and after hearing the same, the trial Court has rejected both the applications.
7. Learned counsel for the appellant submits that they are the absolute owners of the suit schedule property having secured the same by way of registered Partition Deed and are in peaceful possession and enjoyment of the same. Learned counsel further submits that respondent No.1 has no manner of right, title, interest over the suit schedule property and the Sale Deed so procured by respondent No.1 is not a valid document and does not render a legally valid title to respondent No.1.
8. Having considered the arguments of the learned counsel for the appellants and on perusal of the records and the orders passed by the learned Trial Judge, I am of the considered view that the learned Trial Judge has rightly come to the conclusion that the appellants have not made out a prima-facie case for grant of injunction in their favour. What needs to be noted here is that prima-facie case is different from prima-facie title. The appellants themselves have admittedly stated that respondent No.1 has put up construction by mortgaging the property with a view to grab the suit schedule property from the appellants.
9. Second relief claimed by the appellants is for restraining respondent No.1 from putting up further construction in the suit schedule property. Therefore, even according to the appellants, respondent No.1 is in peaceful possession and enjoyment of the suit schedule property and he has put up construction in the suit schedule property. Respondent No.1 has stated that the property described by the appellants is a fictitious property and that the appellants are strangers. After obtaining loan from the respondent No.2-Bank, he has started construction in the suit schedule property.
10. It is also necessary to note that admittedly, respondent No.1 is in possession and is putting up construction and even according to the appellants, the cause of action for filing of the suit is sometime in 10.01.2019, when they came to know about the construction being put up by respondent No.1, but the appellants have approached the Civil Court on 18.01.2019. Therefore, as on the date of filing of the suit, the appellants were aware that respondent No.1 is putting up construction in the property but for the reasons best known to them, the appellants have filed the suit only for injunction.
11. Learned counsel for the appellants fairly submits that he has already filed another suit for comprehensive relief against respondent No.1.
12. Having considered the arguments of the learned counsel for the appellants, I find no reason to interfere with the order passed by the trial Court as the same is equitable relief, which is granted by the trial Court on prima-facie case. The trial Court has not expressed any opinion with regard to merits of the matter, the impugned order does not call for interference and accordingly, the appeal is dismissed.
No costs.
Sd/- JUDGE MBM VK