IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JUNE, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA MISCELLANEOUS FIRST APPEAL No.7665/2016 (CPC) BETWEEN:
SMT. N. JAYALAKSHMI, W/O RAMACHANDRA, AGED ABOUT 52 YEARS, RESIDING AT NO.11/2, YELLUKUNTE VILLAGE, HSR SECTOR-3, BOMMANAHALLI POST, BANGALORE, PIN-560068.
(BY SRI, ADVOCATE) AND:
1. DHANARAJ, G.A., S/O LATE G. ANNAIAH SHERUGAR, AGED ABOUT 38 YEARS, 2. SMT. JYOTHI. G., W/O DHANARAJ. G., AGED ABOUT 34 YEARS, BOTH ARE RESIDING AT NO.14, 14TH MAIN, HSR LAYOUT, 5TH SECTOR, BANGALORE-560102.
(BY SRI, ADVOCATE) ... APPELLANT ... RESPONDENTS …..
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 20.09.2016 PASSED ON I.A. NO.1 IN O.S. NO.3244/2016 ON THE FILE OF THE LXII ADDITIONAL CITY CIVIL JUDGE, (CCH-63), BANGALORE, REJECTING I.A. NO.1 FILED UNDER ORDER 39 RULE 1 & 2 READ WITH SECTION 151 OF CPC.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The plaintiff has filed the present Miscellaneous First Appeal challenging the order dated 20.09.2016 made in O.S.No.3244/2016 on the file of the LXII Addl. City Civil Judge, Bengaluru, rejecting I.A.No.1 filed under Order XXXIX Rule 1 and 2 r/w Section 151 of Code of Civil Procedure and I.A.No.2 filed under Section 151 of Code of Civil Procedure, by the plaintiff.
2. The plaintiff filed suit for permanent injunction to restrain the defendants from interfering with the suit schedule property of the plaintiff, contending that, she is the absolute owner of the house property morefully described in the schedule. According to the plaintiff, his maternal grand mother late Munihanumakka, W/o Chikkamuniswamy, acquired the suit schedule property through registered partition deed dated 08.06.1942 and after her death, katha was transferred in the name of the plaintiff and she is in possession and enjoyment of the property and defendants have no manner of right or title over the property and therefore she filed the suit.
3. The defendants filed written statement, denied the plaint averments and contended that the defendants purchased the site No.406 formed out of suit schedule property and therefore sought for dismissal of the suit.
4. During pendency of the suit, the plaintiff filed two applications, (i) under Order XXXIX Rule 1 and 2 of Code of Civil Procedure to restrain the defendants from interfering with the peaceful possession of the suit schedule property by the plaintiff and (ii) under Section 151 of Code of Civil Procedure seeking police protection for implementation of the status quo order dated 29.04.2016, reiterating the averments made in the plaint. The defendants filed objections to the said applications.
5. The Trial Court, considering the entire material on record, by the impugned order dated 20.09.2016, rejected I.A.Nos.1 and 2 filed by the plaintiff. Hence the present appeal is filed.
6. I have heard the learned counsel for the parties to the lis.
7. Sri K.Lakshmikanth, learned counsel for the appellant vehemently contended that the impugned order passed by the Trial Court is erroneous and contrary to the material on record. Plaintiff filed suit based on the registered partition deed executed in the year 1942 in favour of the plaintiff’s maternal grand mother. After her death, plaintiff is in possession and enjoyment of the property. The Trial Court has not considered the material on record and dismissed the applications. Therefore, sought to allow the appeal by setting aside the impugned order.
8. Per contra, Sri H.Ashok Kumar, learned counsel for respondent Nos.1 and 2 sought to justify the impugned order and strenuously contended that the plaintiff has not produced any material document to show that she is in possession of the suit schedule property and therefore, the Trial Court was justified in rejecting the applications. Therefore, sought for dismissal of the appeal.
9. Having heard the learned counsel for the parties, it is the specific case of the appellant/plaintiff that she is in possession of the suit schedule property by virtue of registered partition deed said to have been executed in favour of her maternal grand mother in the year 1942. After her death, all the revenue records are transferred in the name of the appellant and she in possession of the property. The said averments are denied by the defendants by filing written statement.
10. The Trial Court after considering the entire material on record, recorded a finding that plaintiff failed to make out prima-facie case and balance of convenience is not in favour of the plaintiff and plaintiff will not to be put to irreparable loss and hardship if the applications are rejected. The Trial Court further recorded a finding that the sanction plan and permission from BBMP for construction of the building shows that defendants have been granted permission to construct the building and that the order sheet in O.S.No.3681/2016 dated 17.05.2016 shows that ex- parte temporary injunction has been granted in favour of the defendants in respect of the suit schedule property. It is further observed that, the documents produced by the defendants establishes that they have purchased site No.406 measuring 150.06 sq.mtr situated at HSR Layout, 7th Sector, Bengaluru and they have obtained sanction plan and permission from BBMP for construction of the building. The copy of the photograph shows that the building is in the verge of completion. The plaintiff has not produced any document to show that the defendants have made construction over her property. Plaintiff has not made out a prima-facie case and balance of convenience is not in favour of the plaintiff. Accordingly, the Trial Court rejected the applications.
11. Even on enquiry by this Court, learned counsel for the appellant/plaintiff is not in a position to substantiate the possession of the plaintiff as on date of filing of suit and not produced any documents to prove the prima-facie case. In the absence of the same, this Court is not in a position to appreciate the contentions urged by the learned counsel for the appellant. The Trial Court has rightly rejected the applications filed by the appellant/plaintiff. No grounds are made out by the appellant to interfere with the impugned order in exercise of appellate jurisdiction by this Court. Accordingly, Miscellaneous First Appeal is dismissed.
Sd/- JUDGE kcm