IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MISCELLANEOUS FIRST APPEAL No.3904 OF 2019 (CPC) BETWEEN 1. Smt. Kasturi W/o. Mr. I.K.Aiyanna, Aged about 53 years, 2. I.K.Aiyanna, S/o.Late I.A.Karumbiah, Aged about 60 years, Both residing at No.120 2nd Main, 3rd Cross, Bapuji Nagar, Mysore Road, Bengaluru-560026.
(By Sri. M.J.Alva, Advocate) AND K.Ananda, S/o. Late S.Krishnappa, Aged about 52 years, No.44/8, Dubasipalya, Valagerehalli, Kengeri Hobli, Bengaluru South Taluk, Bengaluru-560059.
(By Sri. T.N.Arakeshwara, Advocate) …Appellants …Respondent This MFA is filed under Order 43 Rule 1(r) of CPC, Against the order dated 27.04.2019 passed on I.A.No.1, in O.S.No.1306/2019, on the file of the XIV Additional City Civil Judge, Bengaluru (CCH-28), allowing the I.A.No.1 filed under Order 39 Rule 1 & 2 read with Section 151 of CPC.
This MFA coming on for admission, this day, the Court delivered the following :
JUDGMENT This appeal is filed by defendants no.1 and 2 in O.S.No.1306/2019 on the file of Addl. City Civil Judge, C.H.No.28, Bengaluru. The respondent is the plaintiff. The suit is for permanent injunction in respect of property bearing Assessment no.44/8 situated at Valagerehalli Village, Dubasipalya, Kengeri, Bangalore South Taluk measuring East to West 35 ft. and North to South 80 ft. It is the case of the plaintiff/respondent that by virtue of a release deed dated 12.12.2014, he became the absolute owner of the plaint schedule property and holds its possession. The katha issued by BBMP also stands in his name. It is stated that the larger extent of land in Sy.No.44/8 belonged to his grandfather D.P.Narayanappa. In the year 1977 there took place a partition amongst the family members of D.P.Narayanappa and in that partition also Sy.No.44/8 was allotted to D.P.Narayanappa. On 13.05.1980 D.P.Narayanappa died and thereafter the land in Sy.No.44/8 devolved on his legal representatives. These legal representatives on 12.12.2014 executed a sale deed in favour of the plaintiff. This being the state of affairs, the defendant who has no right of whatsoever nature came near the plaint schedule property on 12.02.2019 and disturbed his possession. Being unable to resist the defendant, he filed a suit for permanent injunction and along with the plaint he also made an application for temporary injunction. The trial court upon hearing the plaintiff and the defendant passed the impugned order on 27.04.2019.
2. Heard the appellants’ counsel and the respondent’s counsel.
3. The learned counsel for the appellants submits that the plaintiff was actually not in possession of the plaint schedule property on the date of the suit. In respect of the plaint schedule property the appellants had earlier filed a suit in O.S.No.1912/2001 against the plaintiff’s sister viz., Vishalakshamma. In the said suit the plaintiff appeared before the court as GPA holder of Vishalakshamma and adduced evidence as DW-2. The said suit came to be decreed on 29.06.2005. Challenging this decree, the defendants therein preferred RFA.No.1047/2005 before this court and it was dismissed on 30.03.2011. The decree in O.S.No.1912/2001 very clearly shows that the appellant was in possession of the property. Since the decree was violated, the appellant initiated execution under Order 21 Rule 32 CPC by filing execution Petition No.722/2019. In the said execution case, the respondent in this appeal made an application as an objector. When the execution case is pending, the respondent filed the present suit on 18.02.2019. The trial court passed exparte order of status quo on 19.02.2019. Misusing the status quo order, the respondent forcibly took possession of the suit property on 19.02.2019. The respondent was not at all in possession. The trial court has not at all taken into consideration all the documents that the appellant has produced before it while deciding the application for temporary injunction. It has just relied on a telephone bill produced by the respondent to infer the respondent’s possession. The appellant who subsequently obtained the release deed from the defendant in O.S.No.1912/2001 has also filed another suit O.S.No.7661/2016 against Shanta, B.S. Achuta and the Commissioner, Bruhat Bengaluru Mahanagara Palike. In this suit they have sought the declaration that the sale deed dated 28.08.2008 executed by defendant no.2 in favour of defendant no.1 relating to a piece of land in Sy.No.44/8 as null and void, mandatory injunction for demolition of the constructions made in the said land and for its possession. Though copy of the plaint in O.S.No.7661/2016 was produced before the trial court, the said document has not at all been taken into consideration. This shows that there is total non-application of mind by the trial court. It has erroneously held that the respondent has made out a prima face case and existence of balance of convenience and relative hardship in his favour. The trial court in these circumstances should not have granted an order of temporary injunction. Therefore he argues for allowing the appeal.
4. The learned counsel for the respondent submits that the appellants’ land is actually situated in Sy.No.45/1 which earlier belonged to one Abdulla Sab. On 9.6.1960, he sold entire 3 acres 25 guntas of land to one Gundappa. After death of Gundappa, his wife and children sold the said land to one K.V.Narayanamurthy and V. Padmanabhaiah, who are said to be vendors of the appellants. These transactions show that the appellants’ property is situated in Sy.No.45/1. The suit is filed in respect of land in Sy.No.48/8. The respondent’s property and the appellants’ property are totally different. The trial court has discussed this aspect of the matter. The respondent has produced all the documents evidencing his possession on the date of suit. It is not only the telephone bill that the trial court has relied upon, other documents are also considered for arriving at a conclusion that all the essential ingredients are present for granting an order of temporary injunction. His argument is that the appeal is devoid of merits and it should be dismissed.
5. If the findings of the trial court are perused it very well appears that there is no discussion on the documents produced by the appellant/defendant. Though the trial court has referred to the documents produced by the respondent/plaintiff, mainly it relied upon the telephone bill standing in the name of the plaintiff. With regard to this telephone bill it is observed that although the said telephone connection appears to have been taken in the month of February, 2019, the plaintiff should have applied for telephone connection prior to the month of February, 2019. While giving telephone connection, the concerned authority might have examined the documents and visited the house of the plaintiff for inspection and in his presence only the telephone connection appears to have been given. This shows that the plaintiff was in possession of the suit property prior to the filing of the suit. Therefore it is clear that the trial court has relied upon this telephone bill to arrive at a conclusion about the plaintiffs’ possession over the plaint schedule property on the date of the suit. It has not at all discussed the actual defence put forth by the appellants. Prima facie opinion as regards the effect of the decree in O.S.No.1912/2001, the dismissal of RFA.No.1047/2005 and filing of execution 722/2019 should have been given. The decree in O.S.No.1912/2001 very well shows that the appellant instituted a suit in respect of property bearing house list No.40, VP Katha No.44/8 and 45/1 situated at Dubasipalya village, Valagerehalli Dakhle, Kengeri, Bangalore South Taluk. The learned counsel for the respondent argues that the entire land in Sy.No.45/1 was acquired by BDA for formation of Gnana Bharati Layout, but the same is refuted by the appellants. It is also the fact that the respondent made an application in execution petition 722/2019 objecting the decree. This application was made on 16.02.2019. Moreover the appellants have produced copy of the plaint in O.S.No.7661/2016. The defendants in this suit are one Shantha, B.S.Achyutha, the Commissioner, BBMP. But the fact remains that it is a suit for declaration with regard to the sale deed dated 28.08.2008, mandatory injunction for demolishing of certain construction made in schedule ‘B’ property and for possession of ‘B’ schedule property as described in that plaint. The ‘B’ schedule property described in the said plaint is bearing Assessment No.44/8, Valagerehalli Dakhle, Kengeri, Bangalore South Taluk. If the boundaries given in the present suit are compared with the boundaries of the properties described in the plaint filed in O.S.No.7661/2016, it appears that on all the three sides the property is shown as bounded by remaining property in Sy.No.44/8. Only one boundary differs. In the present suit, the northern boundary is shown as road and in O.S.No.7661/2016, the northern boundary of ‘A’ schedule property is shown as passage and the southern side is shown as road. Therefore the trial court should have compared these boundaries while arriving at a conclusion with regard to existence of prima facie case. There is no consideration of documents produced by the appellant at all. If these documents are now considered, definitely it stares at the plaintiff/respondent to doubt whether at all he was in possession of the suit property on the date of filing of the suit. In this view, at this stage, it is possible to hold that the respondent might have taken possession by misusing the status quo order dated 19.2.2019. I do not find existence of prima facie case at all. Definitely the trial court has arrived at an erroneous conclusion simply based on telephone bill. There is no case for grant of temporary injunction. Therefore there is a case made out for interference in this appeal. The order dated 27.04.2019 on applications 1 and 2 filed under Order 39 Rules 1 and 2 CPC is set aside, the said applications are dismissed. There is no order as to costs.
Sd/- JUDGE sd