IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MARCH, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR MISCELLANEOUS FIRST APPEAL NO.9295/2011 (CPC) BETWEEN:
SMT. SHASHIKALA W/O H.A.MUNEGOWDA AGED ABOUT 35 YEARS R/AT NO.189/19 MUNI BUILDING NEAR PETER CLANES HENNUR CROSS, HENNUR, BENGALURU-43.
… APPELLANT (BY SRI. M.S. VARADARAJAN, ADVOCATE) AND:
SRI C.V. TARUN RAJ BUMHAM S/O C H VIVEKANANDA AGED ABOUT 26 YEARS R/AT NO.4, BENSON ROAD BENSON TOWN BENGALURU-560 046.
… RESPONDENT (BY SMT. NANCY PRINCE, ADVOCATE) THIS APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 17.9.2011 PASSED ON I.A.NO.1 IN O.S.NO.2637/2011 ON THE FILE OF THE XXII ADDITIONAL CITY CIVIL JUDGE, BANGALORE DISMISSING I.A.NO.1 FILED U/ORDER 39 RULE 1 & 2 CPC FOR T.I.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard Sri. Varadarajan, learned Advocate appearing for appellant and Smt. Nancy Prince, learned Advocate appearing for respondent. Perused the order dated 17.09.2011 under challenge in this writ petition.
2. Appellant is before this Court challenging the order dated 17.09.2011 passed in O.S.No.2637/2011, whereunder interlocutory application filed by plaintiff for grant of temporary injunction has been rejected.
3. Plaintiff had filed the suit in question initially for the relief of perpetual injunction contending interalia that suit property is a portion of the land bearing Sy.No.33/1A measuring 1 acre and 7 guntas situated at Hennur village which was originally belonging to plaintiff’s father-in-law – Sri. Annayappa and he had given his consent for change of khatha in the name of his son Sri Munegowda who is the husband of the plaintiff and accordingly, khatha was transferred to the name of Sri.Munegowda and said Sri Munegowda had executed a gift deed dated 13.01.2011 in favour of plaintiff and as such plaintiff had acquired title to the suit property under the said gift deed and she has been exercising her right, title and interest over the said property and she is in possession and on account of interference made by defendant, suit for injunction came to be filed. In support of the main relief, interlocutory application for temporary injunction also came to be filed.
4. On service of suit summons, defendant appeared and filed written statement denying averments made in the plaint and contended that father-in-law of the plaintiff during his life time had formed sites in the suit schedule property and had sold the same to the prospective purchasers though not under registered sale deed, document were executed in favour of the purchasers and also General Power of Attorney was executed confirming delivery of possession reserving liberty to the Power of Attorney holder to enjoy the property and with a right to the agent to sell the property and by virtue of such agency created, Power of Attorney holder had executed a registered sale deed in favour of defendant on 12.06.2002 and by virtue of the same, defendant has been in possession and enjoyment of the property. Statement of objections to interlocutory application for temporary injunction was also filed which was on the same lines.
5. Trial Court after considering the rival contentions and on evaluating the documents produced by respective parties, rejected the application on following grounds:
(a) there was no basis for recording of name of plaintiff’s husband in revenue records since khata does not confer title;
(b) payment of tax would not confer possession; and (c) it was not established that Sri Munegowda had acquired title to the property by any known process of law.
(d) The owner of the suit schedule property i.e., father-in-law of plaintiff had executed General Power of Attorney in favour of Sri.Vivekanada and he in turn had sold the suit schedule property in favour of defendant.
6. While considering the plea of defendant as put forward in the written statement as well as statement of objections, trial Court has noticed that defendant had put up a compound wall in the suit schedule property and General Power of Attorney executed by Sri Annaiah in favour of Sri Vivekananda (father of defendant), when perused, would indicate that it related to suit schedule property. Receipt-cum- possession document executed on a stamp paper by Sri Annaiah (Father-in-law of plaintiff) would also disclose that possession of suit schedule property had been delivered in favour of the agent Sri Vivekananda by the principal i.e., plaintiff’s father-in-law during his life time and he in turn, by virtue of Power vested to him under the General Power of Attorney had conveyed the title of suit schedule property to the defendant. Apart from these facts, trial Court also took note of the fact that defendant had obtained electricity connection to the suit property and it would probabilise the case of defendant of being in possession of suit property and as such, it has rejected the application for temporary injunction filed by the plaintiff.
7. It is the contention of Sri Varadarajan, learned Advocate appearing for appellant that while considering an application for temporary injunction, there would not be any need for conducting a mini trial and documents produced by the plaintiff primafacie established a semblance of right to suit schedule property in favour of plaintiff and same would suffice for grant of temporary injunction. He would elaborate his submission by contending that title deed produced by plaintiff namely, gift deed dated 13.01.2011 would primafacie indicate that plaintiff had acquired title to the suit property under said document which is duly registered and same has been completely ignored by the trial Court. Hence, he contends that there is material irregularity as well illegality in the order passed by the trial Court and he prays for this Court to exercise appellate jurisdiction to set aside the same.
8. Per contra, Smt. Nancy Prince, learned Advocate appearing for respondent would support the order passed by trial Court and prays for rejection of the appeal.
9. Having heard the learned Advocates appearing for parties and on perusal of the records, it would clearly disclose that original title holder of the property was one Sri Annaiah who is none other than father-in-law of the plaintiff. Plaintiff is claiming title to the property by virtue of gift deed executed by her husband Sri Munegowda. However, pleadings are silent as to how Sri Munegwoda had acquired title to the property. Even otherwise, records would indicate as discussed by the trial Court in detail, that original owner of the property Sri Annaiah had executed a General Power of Attorney in favour of one Sri Vivekananda whereunder he had conferred power on the agent to convey the property and by virtue of such power vested with the agent by the principal, said Sri Vivekananda had sold the suit schedule property in favour of defendant under a registered sale deed dated 12.06.2002 which is much prior to the execution of gift deed dated 13.01.2011 by Sri Munegowda in favour of his wife – present plaintiff. Thus, trial Court has noticed that primafacie material would establish that title had passed on to defendant through the original owner Sri Annaiah and as such, it came to be held by trial Court that documents produced by defendant would clearly establish that defendant is in settled peaceful possession and enjoyment of suit schedule property. The exercise of discretion by trial Court in refusing to grant an order of temporary injunction in favour of plaintiff , in the facts obtained, cannot be held as based on misconception of facts or mis-construction of documents produced by the parties or had applied wrong standards for drawing such conclusion. The reasoning adopted by trial Court is based on sound appreciation of material available before it which does not call for interference.
Hence, I proceed to pass the following:
ORDER (i) Appeal is hereby dismissed.
(ii) Order dated 17.09.2011 passed on I.A.No.I by XXII Addl. City Civil Judge, Bangalore in O.S.No.2637/2011 is hereby affirmed.
(iii) No costs.
It is needless to state that trial Court shall not get influenced by the observation made by it while disposing of I.A.No.I or present order passed by this Court since this Court within the limited sphere of considering the prayer for grant of temporary injunction only has examined the claim of plaintiff.
In view of appeal having been dismissed, I.A.No.1/2011 for temporary injunction does not survive for consideration and it stands rejected.
SD/- JUDGE *sp