IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL NO. 1703 OF 2014 (CPC) BETWEEN:
1. NARESH CHOYAL AGED ABOUT 29 YEARS S/O POONARAM CHOYAL 2. SMT RADHADEVI CHOUDHARY AGED ABOUT 34 YEARS W/O NARESH CHOYAL BOTH ARE R/O.NO.13 & 14 KATHA NO.341/13-14 CHIKKABETTAHALLI HESARAGHATTA MAIN ROAD M.S.PALYA VIDYARANYAPURA POST BENGALURU-560 097 … APPELLANTS (BY SRI R.GOPAL, ADV.) AND:
1. MOHAMMED AMEER SINCE DEAD BY LRS 1(a) MOHAMMED NASIR AGED ABOUT 39 YEARS 1(b) MOHAMMED ZAHEER AGED ABOUT 35 YEARS 1(c) MOHAMMED ZAMEER AGED ABOUT 35 YEARS ALL ARE SONS OF LATE MOHAMMED AMEER R/O NO.11/1, 4TH CROSS 9TH MAIN, SUBEDARPALYA YESHWANTHAPURA BENGALURU-560 022 2. N. LAKSHMINARAYANA AGED ABOUT 47 YEARS S/O LATE R.NARASIMHA MURTHY R/O NO.585, MATHRUCHAYA III CROSS, VINOBA NAGAR SHIMOGA-577 204 3. SMT N.SURYAKANTHI AGED ABOUT 50 YEARS D/O LATE DR.R.NARASIMHA MURTHY R/O C/O DR.A.S.GIRISH 7TH CROSS ASHOKANAGAR TUMKUR-572 103 4. N.NARASIMHA MURTHY AGED ABOUT 39 YEARS D/O LATE DR.R.NARASIMHA MURTHY R/O NO.18/19 C/O PANCHAMUKHI GANESH TEMPLE VIDYARANYAPURA POST BENGALURU-560 097 … RESPONDENTS [BY SRI P.DHANANJAYA, ADV. FOR LRS OF R1(a) TO R1(c); VIDE ORDER DATED 13.11.2018 APPEAL AGAINST R2 TO R4 DISMISSED] THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE CODE OF CIVIL PROCEDURE PRAYING TO SET ASIDE THE ORDER DATED 12.12.2013 PASSED BY THE COURT OF THE X ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU (CCH-26) IN O.S.NO.2832/2013 AND ETC.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The first respondent filed O.S.No.2832/2013 before the X Additional City Civil and Sessions Judge, Bengaluru (CCH-26) seeking declaration that the sale deed dated 01.09.2006 executed by the first defendant in favour of his mother in respect of the suit property does not bind him and declaration that sale deed dated 24.01.2013 executed by defendant Nos.1 to 3 in favour of defendant Nos.4 and 5 is sham and collusive transaction and for permanent injunction.
2. Appellants were defendant Nos.4 and 5, respondent Nos.2 to 4 were defendant Nos.1 to 3 in the said suit. For the purpose of convenience, parties will be referred to henceforth with their ranks before the Trial Court.
3. Defendant Nos.1 to 3 are the children of late Dr.R.Narasimha Murthy and Smt.R.Lakshmi Murthy. The plaintiff was the owner of the properties bearing Site Nos.73 and 74 in all measuring 80 feet and 30 feet carved out of Sy.No.16 of Chikkabettahalli village, Yelahanka Hobli, Bengaluru North Taluk.
4. Defendants claim that the plaintiff executed an agreement of sale and general power of attorney dated 23.06.1984 in favour of father of defendant Nos.1 to 3 in respect of suit property which was then the open land. They further claimed that after the death of father of defendant Nos.1 to 3, plaintiff executed irrevocable general power of attorney in favour of defendant No.1 and by virtue of such general power of attorney, defendant No.1 sold the property on 01.09.2006 in favour of his mother. After the death of their mother, defendant Nos.1 to 3 purportedly sold the suit property to defendant Nos.4 and 5 on 24.01.2013.
5. Plaintiff contended that all the documents set up by the defendants were concocted one and actually the transaction between him and father of defendant Nos.1 to 3 was lease agreement for 30 years and after the term of lease, the defendants have not vacated the properties and as against that they have concocted some documents.
6. The plaintiffs filed I.A.No.1 seeking temporary injunction restraining the defendants from altering the nature of the building or meddling or inducting third party into the suit property.
7. The defendants contested the application. The Trial Court by the impugned order allowed the application holding that admittedly the plaintiff was the original owner of the property and the validity of the transaction set up by the defendants has to be decided on trial and till then it is necessary to keep the property intact without any changes.
8. The relief of temporary injunction is a discretionary relief. Unless it is shown that the Trial Court exercised such discretion in granting the injunction in perverse manner and the said discretion cannot be interfered. The Court while granting the injunction is expected to consider the prima facie case of the right of the applicant, injury to such right and the balance of convenience.
9. The defendant himself admits that the plaintiff was the original owner. Though they set up the agreement of sale deed, the enforcement of such agreement was not sought.
10. The sale deed relied upon by the defendant was based on general power of attorney allegedly executed by the plaintiffs in favour of father of defendant Nos.1 to 3, whereas the plaintiffs disputed execution of such documents. The validity of those documents need to be tested at trial.
11. Taking into consideration these aspects the Trial Court held that the plaintiff has made out prima facie case and status quo requires to be maintained till the disposal of the matter.
12. This Court does not find any perversity in exercising the discretion by the Trial Court.
No case is made out for admission, therefore, the appeal is dismissed with costs.
The Trial Court shall proceed with the matter uninfluenced by any of the observation made in this order.
Sd/- JUDGE KG