IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR MISCELLANEOUS FIRST APPEAL NO.7704 OF 2018 (CPC) Between:
1. Smt. Lingamma W/o. late Muniveerappa D/o. late Venkatamma Aged about 55 years 2. Smt. Shobha W/o. late Ramalingappa Aged about 39 years Both Appellants are R/at No.19, Bhoganahalli Village Panathur Post, Varthur Hobli Bengaluru – 560 103. …Appellants (By Sri. V. Viswanath Shetty, Advocate) And:
1. Sri Vinay S/o. late Rama Reddy Aged about 31 years R/at No.99, 1st Floor, 20th Main Road BTM Layout, 1 Stage Jaibheemanagar Main Road Near Gangothri Bar & Restaurant Circle & Hotel Udupi Sagar Bengaluru – 560 075.
2. Sri Vikas S/o. B.S. Somesh Aged about 24 years R/at No.165, 1st ‘A’ Main Road 1st Block ,Koramangala Jakkasandra Extension Bengaluru – 560 034. …Respondents (R1 & R2 - served unrepresented) This MFA is filed under Section 43 Rule 1(r) of CPC against the order dated 04.08.2018 passed on I.A., in O.S.No.8885/2017, on the file of the XLI Additional City Civil Judge, Bengaluru (CCH-42), rejecting the IA., filed under Order 39 Rule 1 and 2 r/w sec.151 of CPC and etc., This MFA coming on for Admission, this day, the Court delivered the following:
JUDGMENT The plaintiffs in O.S.8885/2017 have preferred this appeal aggrieved by the order dated 04.08.2018 on their application under Order 39 Rule 1 and 2 of CPC.
2. Heard the appellants’ counsel. The respondents are served, but they have not entered appearance either in person or through an advocate.
3. The appellants claim to be the absolute owners being in possession of 37 guntas of land in survey number 128/5 of Bhoganahalli village, Panathur Post, Varthur Hobli, Bangalore East Taluk. Originally the said land was granted to one Chinnappaiah. He sold this land to one Chinnamma, the mother-in-law of the first plaintiff and Venkatamma, the mother-in-law of the second plaintiff by executing a sale deed dated 19.05.1980. After the demise of Chinnamma and Venkatamma, the plaintiffs state that they succeeded to this property and claim to be in possession of the same. It is stated that the Special Deputy Commissioner also granted 36 guntas of land in survey number 128/3 to Chinnappaiah. Chinnappaiah sold the same in favour of one Gullappa by executing a sale deed dated 18.05.1973. This Gullappa in turn sold this property to Ramareddy, the father of the first respondent on 18.05.1974. It appears that when Chinnappaiah executed sale deed in favour of Gullappa, there occurred a mistake in mentioning the survey number. Instead of mentioning the Sy.No.128/3 it was written as 128/5 and therefore seeking rectification of the said survey number, Rama Reddy, Smt. Padma and Sri. Vikas filed suit – O.S. 473/2005 against the legal representatives of Chinnappaiah and also Chinnamma and Venkatamma. The said suit came to be decreed on 23.04.2011. The legal representatives of Chinnappaiah have preferred an appeal to this Court and the same is pending. The plaintiffs state that the suit property i.e. land in Sy.No. 128/5 belongs to them and that defendants have no manner of right, title or interest. The defendant started interfering with plaintiffs’ possession and therefore, they were constrained to file the present suit. They also made an application for temporary injunction. The trial Court dismissed the said application.
4. It is the argument of the appellants’ counsel that the trial Court has taken a wrong view in dismissing the application for temporary injunction filed by the plaintiffs. It is argued that the defendants do not have any kind of right or interest in Sy.No.128/5. The suit filed in O.S.473/2005 by the father of the first defendant – Rama Reddy is decreed. The first appeal is pending in this Court. But it cannot be a ground for rejecting the application. Subject matter of the suit in O.S.No.473/2005 is land in Sy.No.128/3 which belongs to the defendants. Status quo order has been passed by this Court in RFA in respect of land in Sy.No.128/3. Without noticing the fact that there is status quo in respect of that land, the trial Court came to a wrong conclusion that injunction cannot be granted in view of the status quo order.
5. I find force in the argument of the appellants’ counsel. The second defendant – Vikas in O.S.8885/2017 is one of the plaintiffs in O.S.473/2005. If the plaint in O.S.473/2005 is perused, it becomes clear that the said suit came to be filed in respect of land in Sy.No.128/3. It is clearly stated in the plaint filed in the said suit that Chinnappaiah, the father of the first defendant sold the land in Sy.No.128/5 in favour of defendants 5 and 6 i.e. Chinnamma and Venkatamma respectively on 19.05.1980 by executing a sale deed. In this suit also, the plaintiffs claim to be in possession of this land in Sy.No.128/5. Land in Sy.No.128/3 is not the subject matter in O.S.8885/2017. The trial Court has failed to notice this. The trial Court should have come to the conclusion that the possession of the suit land is with the plaintiffs and ought to have granted temporary injunction. Hence, the trial Court has committed an error in dismissing the application. I find that the plaintiffs have made a prima facie case for grant of temporary injunction in their favour. Balance of convenience also lies in their favour. Since the possession of the land appears to be with the plaintiffs, if an order of injunction is not granted, they will be put to lot of hardship. Therefore, I find a ground to interfere with the order of the trial Court. Consequently, the appeal stands allowed. The impugned order is set aside. Application filed by the plaintiffs under Order 39 Rule 1 and 2 of CPC stands allowed. The defendants are restrained from interfering with the plaintiffs’ possession and enjoyment of the suit land.
SD/- JUDGE Mgn*