IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL NO.3714 OF 2019 BETWEEN:
N. PUTTASWAMY AGED ABOUT 63 YEARS S/O LATE NINGEGOWDA R/AT 728, 2ND FLOOR 14TH CROSS, 2ND PHASE GIRINAGAR BENGALURU-560 085 … APPELLANT (BY SRI CHETHAN A.C., ADV.) AND:
1. MURALIDHARA A AGED ABOUT 29 YEARS S/O K.C.ANANDA MURTHY R/AT 168, 2G MAIN ROAD 2ND STAGE, 11TH BLOCK NAGARABHAVI BENGALURU-560 072 2. M.UMESH AGED ABOUT 46 YEARS S/O LATE MAYANNA R/AT 92/3, 4TH MAIN ROAD KASTURBHA NAGAR BENGALURU-560 026 … RESPONDENTS (BY SRI K.S.BHEEMAIAH., ADV. FOR C/R1) THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE CPC, PRAYING TO SET ASIDE THE ORDER DATED 07.03.2019 PASSED ON I.A.NO.1 IN O.S.NO.7916/2018 ON THE FILE OF THE XXXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-36).
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T “ Whether the impugned order of the Trial Court granting injunction in favour of the plaintiff/respondent No.1 suffers arbitrariness or perversity ?” is the question involved in this case.
2. First respondent filed O.S.No.7916/2018 before the XXXV Additional City Civil and Sessions Judge, Bengaluru (CCH-36) against the appellant and respondent No.2 herein for permanent injunction. Appellant was defendant No.1. Respondent No.1 was the plaintiff and respondent No.2 was defendant No.2 in the said suit. For the purpose of convenience, parties will be referred to henceforth with their ranks before the Trial Court.
3. The subject matter of the suit was site No.86, ward No.41 of Gali Anjaneya Temple, having PID No.41-224-86, Banashankari 3rd Stage Eranna Gudda, BDA layout, Bengaluru, measuring East to West 7.90 Metrs. and North to South 6.000 Mtrs. in all measuring 47.40 Square Mtrs.
4. BDA allotted the said site to defendant No.2 on 07.12.2006. BDA issued possession certificate to defendant No.2 on 21.03.2011 and put him in possession. Defendant No.2 submitted the representation to BDA requesting to execute sale deed in his favour and representing that he has lost the original possession certificate and allotment letter.
5. BDA executed the Registered sale deed in favour of defendant No.2 on 03.10.2016. Defendant No.2 executed the Registered sale deed in favour of plaintiff on 26.02.2018 for a consideration of Rs.24,15,000/-
6. The plaintiff filed the suit claiming that defendant No.2 on the date of the sale deed itself has put him in possession and he is in exclusive possession of the said property as absolute owner thereof and defendant No.1 without any manner of right, is obstructing his peaceful possession.
7. Defendant No.1 filed written statement denying the possession of the plaintiff. He contended that defendant No.2 entered into an agreement of sale with him in respect of suit property on 05.04.2011 receiving Rs.10 lakhs and put him in possession and since then he is in possession of the property. He further contended that the sale deed set up by the plaintiff is the outcome of collusion between plaintiff and defendant No.2. Defendant No.2 did not contest the suit.
8. In the suit the plaintiff filed I.A.No.1 seeking temporary injunction against defendant No.1 to restrain him from interfering with his peaceful possession of the suit property. The Trial Court by the impugned order allowed the said application and granted the temporary injunction holding that the documents produced by the plaintiff prima facie show his lawful possession as on the date of the suit. The Trial Court further held that though defendant No.1 claims that he is in possession of the property, his own agreement of sale does not contain such recital.
9. The order of interim injunction being the discretionary order, this Court can substitute its opinion to that of the trial Court only if it is shown that the order suffers arbitrariness or perversity.
10. While seeking injunction the applicant is expected to satisfy prima facie his lawful possession as on the date of the suit, injury to his right and that balance of convenience lies in his favour.
11. To substantiate his contention, the plaintiff produced the Registered sale deed dated 26.02.2018 executed by defendant No.2 in his favour, encumbrance certificate, the khatha certificate and tax paid receipts. The documents produced by the plaintiff were indicating that till 26.02.2018 defendant No.2 was in possession of the property and he handed over the possession to the plaintiff on executing the sale deed on 26.02.2018. On such sale, the khatha was changed in the name of the plaintiff.
12. Though defendant No.1/appellant contended that he was put in possession under the alleged agreement of sale dated 05.04.2011, admittedly there was no recital in the said document to the effect that he was put in the possession. Except the police complaint and photographs, defendant No.1 did not produce any authentic documents in support of his alleged possession.
13. Considering all the documents, the Trial Court arrived at the conclusion that the material placed on record prima facie satisfy possession of the plaintiff as on the date of the suit and injury to such right and if the injunction is not granted the plaintiff suffers irreparable injury.
14. Having regard to the facts and circumstances of the case and the material placed before the Trial Court, it cannot be held that the trial Court acted arbitrarily or in perverse manner in granting the injunction.
No case made out for admission. Therefore, the appeal is dismissed.
In view of dismissal of the appeal, I.A.No.1/2019 stood disposed of.
Sd/- JUDGE KG