IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL M.F.A. NO. 1529 OF 2013 C/W M.F.A NO. 1530 OF 2013 BETWEEN:
R.MALA D/O LATE RAJAGOPALAN AGE: 62 YEARS RESIDING AT NO.63 1ST FLOOR THYAGARAJANAGAR BANGALORE-560 028 … APPELLANT (COMMON) (BY SRI CHANDRASHEKAR P., ADV. FOR M/S.RAVI B.NAIK ASSOCIATES) AND:
1. SMT CHITRA ANNASWAMY W/O T.V.ANNASWAMY AGE: ABOUT 72 YEARS RESIDING AT NO.1 ARCOT HOUSE KINGSTON STREET RICHMOND TOWN BANGALORE-560 025 2. SRI NAGARAJ V S/O LATE T.V.VENKATA RAO AGE: ABOUT 52 YEARS RESIDING AT NO.3425 2ND FLOOR, 2ND STAGE 10TH MAIN KUMARASWAMY LAYOUT BANGALORE-560 078 3. SRI K.C.PRABHAKAR REDDY S/O CHOKKAPPA AGE: ABOUT 34 YEARS RESIDING AT NO.727, 3-C 8TH MAIN, 1ST BLOCK H.R.B.R. LAYOUT KALYAN NAGAR BANGALORE-560 043 4. SRI T.N.VENOGOPALA REDDY S/O T.V.NARSI REDDY AGE: ABOUT 36 YEARS R/O CHIKKATEKAHLLI VILLAGE SIDLAGHATTA TALUK CHIKKABALLAPURA DISTRICT-577201 … RESPONDENTS (COMMON) (BY SRI M.B.CHANDRA CHOODA, ADV. FOR R3; SRI SUNIL P.PRASAD, ADV. FOR M/S ILP ADVOCATES FOR R4; V/O DT: 20.03.2019 APPEAL AGAINST R1 STANDS ABATED;
R2 SERVED AND UNREPRESENTED) THESE MFAs ARE FILED UNDER ORDER XLIII RULE 1(r) OF CPC, PRAYING TO SET ASIDE THE ORDER DATED 19.11.2012 PASSED ON I.A.NOS.2 AND 3 RESPECTIVELY IN O.S.NO.4574/2012 ON THE FILE OF THE 42ND ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE.
THESE MFAs COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T “Whether the trial Court committed any arbitrariness or perversity in rejecting the applications of the appellant (I.A.Nos.2 and 3) for grant of temporary injunction against the alienation of the suit schedule property and against interference in the alleged possession of the appellant/plaintiff over the same?” is the question involved in these cases.
2. The appellant filed O.S.No.4574/2012 against the respondents before the XLII Additional City Civil and Sessions Judge, Bengaluru City (CCH-43) for permanent injunction, restraining them from interfering with her alleged possession of the suit schedule property.
3. The subject matter of the suit was the land bearing Sy.No.111/5 measuring 30 guntas situated at Kowdenahalli village of Bengaluru South Taluk which is renamed as Bengaluru East Taluk.
4. Plaintiff’s case in brief was as follows:
That she entered into an agreement of sale with respect to suit property along with Sy.Nos.63/2, 112/3, 125/3 with defendant No.1 on 04.06.1970 for a consideration of Rs.35,000/-. The first defendant executed an agreement of sale dated 04.06.1970 to that effect and put her in possession of the property. On 19.10.1985, defendant No.1 executed general power of attorney with regard to the suit property for management of the property. The plaintiff filed O.S.No.10743/1992 against one Sreeramaiah and others before the XXVIII Additional City Civil Judge, Bengaluru. That suit came to be dismissed on 10.06.2009. After dismissal of the suit, the defendants of this suit in collusion with some advocates forging her signature obtained the return of her documents produced in O.S.No.10743/1992. Thereafter, defendant No.1 sold the suit property to defendant No.3 under the sale deed dated 12.03.2010 and defendant No.3 in turn has sold the property to defendant No.4 on 10.06.2011. On the basis of such sale deed, defendant Nos.3 and 4 are obstructing her possession;
5. Plaintiff filed I.A.Nos.2 and 3 seeking temporary injunction against defendant No.4 against alienation of the property and temporary injunction against all the defendants from interfering with her peaceful possession of the suit schedule property. The trial Court after hearing both side, by the impugned order, rejected the said applications holding that the plaintiff has failed to make out prima facie case of her possession over the property or her right to the property.
6. Sri. Chandrashekar P., learned counsel for the appellant seeks to assail the impugned orders on the following grounds:
(i) The agreement of sale dated 04.06.1970 and GPA dated 19.10.1985 prima facie show that plaintiff was put in possession of the property;
(ii) On the plaintiff’s complaint that the documents produced by her in O.S.No.10743/1992 were fraudulently withdrawn by the defendants and two counsel forging her signature, Ashok nagar police have charge sheeted the defendants in Crime No.187/2013 of their police station which is now pending in C.C.No.51998/2015. That prima facie shows that the documents relied upon by the respondents and the trial Court were fraudulent one.
(iii) The name of defendant No.4 was entered in the records of rights of the suit property after deleting plaintiff’s name.
7. Per contra, learned counsel for the respondents seeks to support of the impugned order of the Trial Court on the following grounds:
(i) The alleged agreement of sale and GPA were disputed;
(ii) Though the alleged agreement of sale deed dated 04.06.1970, the specific performance of the said agreement was not enforced;
(iii) There was nothing on record to show the possession of the plaintiff;
(iv) O.S.No.10743/1992 filed by the plaintiff based on the same documents for declaration was dismissed; and (v) There is no arbitrariness or perversity in the order of the Trial Court.
8. The order of the trial Court under Order 39 Rules 1 and 2 of CPC is a discretionary order.
Therefore, unless it is shown that the such discretion was exercised in arbitrary or perverse manner, this court in exercise of the power under Section 104 CPC and order 43 Rule 1 of CPC, cannot interfere with such order.
9. While considering an application under Order 39 Rules 1 and 2 of CPC, the applicant is expected to show prima facie his/her right to the property, injury to such right and that balance of convenience lies in his/her favour. Prima facie case includes the prima facie maintainability of the suit also.
10. The plaintiff claimed based on the unregistered agreement of sale dated 04.06.1970 and GPA dated 19.10.1985. Admittedly, she does not take any steps seeking specific performance of the said contract. The time prescribed for enforcing such contract was expired by the time the suit on hand was filed.
11. The only documents produced before the Trial Court in proof of her possession were those agreement of sale and GPA. In the record of rights produced by the plaintiff herself, the name of defendant No.4 was shown in the cultivators column implying that he is in possession of the said property.
12. Plaintiff herself admitted that before the suit was filed, two registered sale deeds dated 12.03.2010 and 10.06.2011 had come into existence in favour of defendant Nos.3 and 4. Despite that without seeking declaration with regard to the said sale deeds, she filed suit for bare injunction. In the light of the judgment of the Hon’ble Supreme Court in Anathula Sudhakar vs. P.Buchi Reddy1 the suit as framed prima facie was not maintainable.
13. The charge sheet filed in another case itself does not show that plaintiff was in possession. If some documents were fraudulently executed, 1 (2008) 4 SCC 594) even in such event the remedy of the plaintiff was to seek comprehensive suit for declaration.
14. Having regard to the aforesaid facts and circumstances, this Court does not find any arbitrariness or perversity in the order of the Trial Court in holding that the plaintiff has failed to satisfy her prima facie possession and also regarding maintainability of the suit. No case is made out for admission. Therefore, the appeals are dismissed.
In view of the dismissal of the appeals, I.A.No.1/2014 stood disposed of.
Sd/- JUDGE KG