IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR M.F.A. NO.7383 OF 2018 (CPC) BETWEEN:
SMT.RAJESHWARAMMA AGED 63 YEARS W/O RAJANNA R/AT NAGAVARA VILLAGE ARABIC COLEGE POST BENGALURU – 560 045.
...APPELLANT (BY SRI.R.S.HEGDE & SRI.N.GANGADHAR, ADVOCATES) AND:
1. SMT.RANGAMMA AGED 85 YEARS W/O RANGASWAMAIAH 2. SMT.HANUMAKKA AGED 53 YEARS D/O RANGAMMA BOTH ARE R/AT NO.2, 1ST STAGE 6TH MAIN, VIJAYANAGARA BENGALURU – 560 040.
3. SRI.K.S.PRASANNA AGED 45 YEARS S/O R.KRISHNA R/AT NO.9, GOVINDAPURA NEAR AKSHYA ARCADE NANJAPPA ROAD, A.C.POST BENGALRU – 560 045.
4. SRI.SYED AFSAR PASHA @ GUNDA AGED 35 YEARS S/O LATE SYED MUSTAR SHA R/AT NO.23, CAUVERY NAGAR 1ST CROSS, NEAR R.K.PALACE KANAKANAGARA BENGALURU – 560 032.
5. SRI.DILIP @ R.X.DILIP AGED 32 YEARS FATHER’S NAME NOT KNOWN TO APPELLANT R/AT VEERANNAPALLI PALYA NEAR SHOBHA APARTMENT, A.C.POST BENGALURU – 560 045.
6. SRI.KAPIL AGED 28 YEARS FATHER’S NAME NOT KNOWN TO APPELLANT R/AT KANAKANAGARA NEAR VIJAYABHARATHI SCHOOL BENGALURU – 560 032.
...RESPONDENTS (BY SRI.JAYAKUMAR S.PATIL, SENIOR COUNSEL FOR SRI.BHADRINATH R., ADVOCATE FOR R1 & R2 NOTICE TO R3 TO R6 IS DISPSENSED WITH) THIS MFA IS FILED UNDER ORDER 43 RULE 1(R) OF CPC AGAINST THE ORDER DATED 31.08.2018 PASSED ON I.A.NOS.1 & 2 IN O.S.NO.4789/2018 ON THE FILE OF THE XVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (C.C.H.16), DISMISSING I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF CPC ALLOWING I.A.NO.2 FILED UNDER ORDER 39 RULE 4 OF CPC.
THIS APPEAL COMING ON FOR ADMISISON, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Heard Sri.R.S.Hegde, learned counsel for the appellant and Sri.Jayakumar S.Patil, Senior Counsel for the respondent Nos.1 and 2. With the consent of the learned counsel for the parties, the matter is taken for final disposal.
2. The factual matrix of the appeal are as under:- The plaintiff Smt.Rajeshwaramma filed a suit in O.S.No.4789/2018 against the defendants for injunction in respect of suit schedule property wherein it is stated that she is the absolute owner and in possession of the suit schedule property and in fact the suit schedule property was originally belonged to one Rajanna and his family members and when that is so, the BDA had issued notification under Sections 4(1) and 6(1) of the Land Acquisition Act for the purpose of handing over the lands to Vyalikaval House Building Co-operative Society Limited and against which her vendor has approached this Court and thereafter the matter was taken up before the Hon’ble Apex Court in Civil Appeal No.1930-32/2012 and the Hon’ble Apex Court was pleased to quash the entire notification issued by the BDA and directed the Land Acquisition Officer to receive back the compensation amount from the land owners and return back the land to the original land owners. The same is depicted in the order passed on I.A. by the Court below.
3. Whereas, the defendant Nos.1 and 2 have taken me through the contentions and contends that defendant No.1 is the absolute owner of the suit schedule property bearing BDA site No.247 and originally the said property was got acquired by the Vyalikaval House Building Co-operative Society Limited and the 1st defendant being a member of the said society applied for a site in the layout formed by the said society and the same is depicted in the order passed by the Court below.
4. However, keeping in view the arguments advanced by the learned counsel for the appellant it is relevant to refer to para – 17 of the impugned order in O.S.No.4789/2018 wherein the court below has observed that though the plaintiff has produced the D.C. conversion order dated 15.9.2016 in respect of suit schedule property still the resolution of BDA bearing No.45/2018 dated 5.3.2018 in turn interestingly shows that the layout plan in respect of the suit schedule land and other lands in favour of Vyalikaval House building co-operative society which was quashed is again given effect. Whereas in that paragraph it indicates the landed property involved in sy.no.24/6 relating to the site to be formed and also allotted, and the same has been purchased by the plaintiff and thereafter had been put in possession. However, it is relevant to state that the photographs of the alleged suit property one produced by the plaintiff and so also the photographs of the written statement schedule property one produced by the defendant no.2 it shows that both the properties are altogether different and situated elsewhere. This observation is also made in the impugned order. Further, learned counsel for the appellant/plaintiff has taken me through the averments made in the plaint as well as observation made in the impugned order which is challenged in this appeal and so also material placed by the plaintiff. In support of his contention the learned counsel has produced a decision of this Court in MFA No.3451/2013 and connected matters disposed on 5.7.2016 wherein it is observed that until the rights of the parties are decided with reference to the ownership and possession, question of disturbing the same does not arise. However, this judgment relates to land bearing Sy.Nos. 35/7 and 35/8 of Nagawara village, Kasaba Hobli, Bangalore North Taluk. The same is also the contention taken by the learned counsel for interfering with the order passed by the court below on an application filed by the appellant in that suit which is adjudicated between the plaintiff and defendant in respect of the suit schedule properties depicted therein relating to Sy.No.24/6. On all these grounds urged by the learned counsel for the appellant, seeks for intervention of this court by allowing the appeal.
5. Per contra, Sri Jayakumar S.Patil, learned senior counsel for respondents has taken me through the contentions taken by the respondents by filing objections to the aforesaid I.As and so also taken me through the order passed by the court below on material document produced by the plaintiff and so also the documents produced by the defendants by resisting the said application. In support of his contention, he has taken me through the materials available on record which is placed by the plaintiff relating to establish the case against the defendants and so also the material documents produced by the defendants by resisting the said application in respect of the suit schedule properties. In support of his contention, the senior counsel has placed reliance on a judgment of this Court in MFA 2433/2018 disposed of on 23.04.2018. In this case there is a dispute which revolves around a portion of the land in Sy.No.34/1 situated in the limit of Nagavara Village. There was a case filed by the plaintiff against the defendant in O.S.No.6287/2013 for permanent injunction in respect of the suit schedule properties. Initially the notification was issued in the year 1999 for acquisition of land in Nagavara village, with the said acquisition running into rough weather, the land owners executed sale deeds dated 20.05.2003 in favour of one Kariyappa leading to conversion of the land in Sy.No.34/1 from agricultural to residential uses, approval of Layout by BDA in Nagavara village including Sy.No.34/1, execution of sale deeds and issuance of possession certificate by the society in favour of different allottees, issuance of khatha for such sites in favour of the allottees/purchasers by the local authorities. Keeping in view the submission of learned counsel for the respondents it is relevant that nothing on record to show that there was challenge either to the sale deed dated 20.05.2003 executive in favour of Kariyappa by the respondent’s grandfather and other family members or to the sale deeds executed by the society, as power of attorney for Kariyappa in favour of its allottees, including the appellant’s original predecessor in title. Therefore, typically the respondent could not have denied the appellant’s title to, and possession of the suit schedule properties. But in the present case, the suit is filed against the defendants in respect of land in Sy.No.24/6 wherein the site properties are depicted in suit schedule in detail. However, the suit is required to be adjudicated between the plaintiff and defendant to establish their right by placing oral and documentary evidence on record. On all these grounds urged by learned counsel for respondents herein seeking for dismissal of the appeal contending that there is no perversity, absurdity and capricious in the impugned order passed by the court below on an application filed by the parties i.e. I.A.1 filed under Order 39 Rule 1 and 2, CPC and I.A.2 filed by defendants under Order 39 Rule 4 of CPC seeking dissolution of the interim order passed by the court below. On all these grounds urged by learned counsel for the respondents contends that it does not arise for any interference with the order passed by the court below.
6. In this context, it is relevant to state that subject to final adjudication of the case between plaintiff and defendants, they have to establish their case by placing oral and documentary evidence relating to the suit schedule property. Needless to remind that injunction is a form of equitable relief and has to be adjusted in the aid of equity and justice to the facts and circumstances of each individual case. Granting of injunction being itself a discretionary matter, there is no straight jacket formula in the matter of granting or refusing temporary injunction. Depending on each case on its own facts, the cardinal principles for consideration of I.A.1 filed under Order 39 Rule 1 and 2 CPC seeking temporary injunction, there should be a strong prima-facie case, the balance of convenience and irreparable loss and injury. Ordinarily in deciding a case for seeking temporary injunction the Court must be satisfied that whether a strong prima-facie case, the balance of convenience is in his favour i.e. it would cause greater inconvenience to him if the injunction is not granted than the inconvenience which the opposite party or the persons claiming through the Opposite Party would be put to if temporary injunction is granted and whether the plaintiff would suffer irreparable loss and injury. Therefore, keeping in view the above principle, it is required to produce the material documents as well as oral evidence to adjudicate the case between the parties relating to the suit schedule property. But in the case filed by the plaintiff relating to Sy.No.24/6 which is depicted in detail in the suit schedule as well as observation made in the impugned order passed by the court below at paragraph – 17 wherein the properties are situated in the limit of Nagavara Village in Bangalore North Taluk. However, the photographs of alleged suit property one produced by the plaintiff and so also photographs of the written statement schedule property one produced by the defendant No.2 interestingly it reveals that both the properties are altogether different and situated elsewhere. At this stage, it cannot be adjudicated in this appeal and it has to be adjudicated in the suit between the plaintiff and defendants and they should establish their case by placing oral and documentary evidence relating to the suit schedule properties. Therefore, in this appeal it does not require any detail discussion with regard to the documents placed by either of the parties. The same has to be tested in the court of law by proper appreciation of the evidence. Whereas the rights of the parties are concerned, the plaintiff and defendants have to establish their case by producing oral and documentary evidence to prove their case keeping in view the Doctrine of Preponderance of Probability. But the suit properties depicted in the schedule of plaint and schedule of written statement and the photographs produced by plaintiff and defendant No.2 interestingly show that both the properties are altogether different and situated elsewhere. In fact the photographs of the written statement schedule property and so also the BBMP sanction plan and the license produced by the defendant No.2 shows that the defendant has partly put up a construction over the schedule property. Therefore, at this stage, without expressing any opinion on the merits of the case and without being influenced by any of the observations made in this appeal, the Court below shall dispose of the suit on merits and in accordance with law, and as expeditiously as possible by giving an opportunity to both the parties to place their oral and documentary evidence. The parties to extend their cooperation for speedy disposal of the suit. Accordingly, the appeal is disposed of.
SD/- JUDGE Prs/Dkb*