IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL NO.10611 OF 2018 BETWEEN:
ANANTHARAMU AGED ABOUT 73 YEARS S/O LATE P.S.SRIKANTAIAH NO.46, “SREELAKSHMI”, 1ST CROSS, UPSTAIRS MICO LAYOUT II PHASE WEST OF CHORD ROAD, 2ND STAGE MAHALAKSHMIPURAM BANGALORE – 560 086 … APPELLANT (BY SRI MANJUNATH B.S., ADV.) AND:
1. SATISH K.R.
AGED ABOUT 44 YEARS S/O LATE RAMEGOWDA R/AT JODIKRISHNAPURA DUDAHOBLI, KORAVANGLA KRISHNAPURAGRAMA HASSAN – 573 118 2. SMT.ROOPA D.J.
AGED ABOUT 34 YEARS W/O SATISH K.R. JODIKRISHNAPURA DUDAHOBLI, KORAVANGLA KRISHNAPURAGRAMA HASSAN – 573 118 … RESPONDENTS (BY SRI MANJUNATH H., ADV. FOR R1 AND R2) THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 21.12.2018 PASSED ON I.A.NO.2 IN O.S.NO.8851/2018 ON THE FILE OF THE XVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-16), DISMISSING I.A.NO.2 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Whether the Trial Court acted arbitrarily or in perverse manner in rejecting the application of the appellant for grant of injunction in passing the impugned order is the question involved in this case.
2. The appellant filed O.S.No.8851/2018 before XVII Additional City Civil and Sessions Judge, Bengaluru (CCH-16) against the respondents for permanent injunction.
3. The subject matter of the suit was the vacant site bearing No.309 carved out of Sy.Nos.61 and 62 bearing Khatha No.191/264 measuring 40 feet X 60 feet situated at Pantharapalya, Bengaluru.
4. Appellant’s elder brother P.S.Chandrashekar purchased the said site on 10.07.1996 from M.Puttaiah and Venkatashamappa through their GPA holder L.Lingaiah. P.S.Chandrashekar in turn said to have gifted the said property to plaintiff under the registered gift deed dated 19.03.2016 and put him in possession.
5. Plaintiff claims that by virtue of such sale and gift deeds, he is the owner and in exclusive possession of the said property and defendants attempted to put up construction on the said property without any right. Thus, he filed the suit for permanent injunction against the defendants.
6. Prior to that with a similar allegations plaintiff filed O.S.No.8100/2018 against one Balaji and Bylamma and that matter was still pending.
7. Defendants claimed to have purchased site No.309 carved out of Sy.No.72 of Pantharapalya village under the registered sale deed dated 03.08.2018. They further claimed that they are constructing a house on the said property securing an approved building plan and building licence issued by the competent Authority and they were in exclusive possession of the said property.
8. In the suit the appellant filed I.A.No.2 against the respondent for interim injunction. The trial Court by the impugned order rejected the said application on the ground that the appellant has failed to satisfy prima facie case of his possession over the property.
9. There were two sets of documents before the Trial Court. One set relied upon by the appellant i.e., sale deed executed by M.Puttaiah and Venkatashamappa through their general power of attorney holder on 10.07.1996, the gift deed executed by P.S.Chandrashekar in favour of the plaintiff, possession certificate issued by M/s Pramodh House Building Co-operative Society Limited in favour of P.S.Chandrashekar and Khatha certificate.
10. The second set were the defendants’ documents namely the grant certificate dated 07.11.1981 issued by the Deputy Commissioner, Bengaluru Urban District in favour of Balaji in respect of Sy.No.72 of Pantharapalya village, their sale deed, Khatha certificate, building licence, sanction plan, electricity and water bill, tax paid receipt and also the sale deed pertaining to the adjacent sites namely Site Nos. 308, 309 and 310.
11. Appellant and respondents both claimed to have purchased the same site from different vendors. But according to the plaintiff, site No.309 situates in Sy.Nos.61 and 62 of Pantharapalya village and according to the defendants, site No.309 situates in Sy.No.72. Thus, the identity of the property was basically in issue.
12. The plaintiff claims that the original owners were M.Puttaiah and Venkatashamappa and they executed GPA in favour of M/s Pramodh House Building Co-operative Society Limited and they formed the layout and sold the sites. Whereas defendants claimed that Balaji got the land converted and he formed the layout and sold the site.
13. Both of them did not produce any approved layout plan before the trial Court. When the plaintiff comes before the Court seeking permanent injunction, the burden was on him to satisfy the prima facie case of his possession.
14. While considering an application for temporary injunction the three factors to be considered are:
i) Whether the plaintiff made out prima facie case of his right;
ii) injury to such right; and iii) balance of convenience lies in whose favour ?
15. As already pointed out, there was a dispute as to the identity of Site No.309 namely whether it falls in Sy.Nos.72 or 61 and 62.
16. The plaintiff had not produced any title documents of his vendors i.e., M.Puttaiah and Venkatashamappa. The defendants produced photographs to show that they have already completed the construction of ground floor building. Under such circumstances, the Trial Court held that plaintiff had failed to satisfy his prima facie possession over the property as on the date of the suit.
17. Learned counsel for the respondents relying on the judgment of this Court in T.L.Nagendra Babu vs Manohar Rao Pawar ILR 2005 KAR 884 contends that when identity of the property is in question, no injunction can be granted.
18. In this case also whether the site No.309 falls in Sy.No.72 or Sy.No.61 and 62 is a question. Therefore, the identity of the property is in dispute.
19. It is submitted that now the plaintiff has amended the plaint to seek declaration and possession of the property.
20. The grievance of the learned counsel for the appellant is that the Trial Court employed the word that plaintiff has failed to prove his possession that may affect his case at the final hearing. At the final hearing, the Court has to go by the evidence adduced by the parties and not the opinion expressed by it at the time of the disposal of the interim application. However, it is made clear that such observation of the trial Court at interim stage shall not influence its ultimate decision on merits at final adjudication.
21. Having regard to the facts and circumstances of the case and the material referred above, this Court does not find any arbitrariness and perversity in the observation of the trial Court that the appellant/plaintiff has failed to make out prima facie case of his possession. Therefore, the appeal is dismissed.
It is made clear that if at all the plaintiff succeeds any further construction made by the defendants is subject to the result of the suit and they are not entitled to claim any equity.
In view of dismissal of the appeal, I.A.No.1/2019 stood disposed of.
Sd/- JUDGE KG