IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10th DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.41392 OF 2018 (GM – CPC) C/W WRIT PETITION NO.41390 OF 2018 (GM – CPC) IN WP No.41392/2018 BETWEEN:
Sri. B.A. Prasannakumar S/o late Annaiappa, Aged about 33 years, R/at No.36, Chikkajala Village, Jala Hobli & Post, Bengaluru North Taluk, Bengaluru – 562 157. ... Petitioner (By Sri. Vijaya Kumar .K, Advocate) AND:
Dr. Sudha W/o Dr. Anantharamaiah, Aged about 48 years, R/at Kadiganahalli Village, Jala Hobli, Bengaluru North Taluk, Bengaluru – 560 064.
(By Sri.A.Rajesh, Advocate for Sri.G.S.Venkat Subba Rao, Advocate) … Respondent No.14/2017 from the file of the Senior Civil Judge and JMFC at Devanahalli and set aside the order dated 03.08.2018 passed in M.A. No.14/2017 vide Annexure-A and consequently dismiss the M.A.No.14/2017 by confirming the order dated 06.03.2017 passed in O.S. No.8/2017(Annexure-F) passed by the Additional Civil Judge and JMFC at Devanahalli.
In W.P. No.41390/2018 BETWEEN:
Sri. B.A. Prasannakumar S/o late Annaiappa, Aged about 33 years, R/at No.36, Chikkajala Village, Jala Hobli & Post, Bengaluru North Taluk, Bengaluru – 562 157. ... Petitioner (By Sri. Vijaya Kumar .K, Advocate) AND:
Sri. C.K. Chidambarnath S/o M. Krishnaya, Aged about 54 yeears, Flat No.303, II Block, 13, Ali Askar Road, Bengaluru – 560 052.
… Respondent (By Sri.A.Rajesh, Advocate for Sri.G.S.Venkat Subba Rao, Advocate) No.15/2017 from the file of the Senior Civil Judge and JMFC at Devanahalli and set aside the order dated 03.08.2018 passed in M.A. No.15/2017 vide Annexure-A and consequently dismiss the M.A.No.15/2017 by confirming the order dated 06.03.2017 passed in O.S. No.10/2017 vide Annexure-F by the Additional Civil Judge and JMFC at Devanahalli.
These writ petitions coming on for Orders this day, the Court made the following:
ORDER These two writ petitions are filed against the common order dated 03.08.2018 made in M.A.No.14/2017 and M.A.No.15/2017 on the file of Senior Civil Judge and JMFC, Devanahalli allowing the appeals by modifying the order dated 06.03.2017 on I.A.No.1 made in O.S.No.8/2017 and O.S.No.10/2017 passed by Additional Civil Judge and JMFC, Devanahalli granting injunction restraining the defendant from interfering with the suit schedule property pending disposal of the suit.
2. The respondents in both the writ petitions who was the plaintiff before the trial Court filed suit in O.S.No.8/2017 and O.S.No.10/20147 for declaration and permanent injunction in respect of suit schedule property morefully described in the schedule to the respective plaint contending that the plaintiff is the owner in possession of suit schedule property in both the suits and defendant has no right, title and interest to interfere with the same. The defendant in both the suits filed written statement denied the plaint averments and contended that the defendant is in possession and enjoyment of suit schedule property by virtue of registered gift deed 31.03.1993 and he is the absolute owner and the plaintiff has not come to the Court with clean hands and sought for dismissal of the suit.
3. Plaintiff in both the suits filed application for temporary injunction reiterating the plaint averments. The said application was resisted by the defendant. The trial Court considering the application and objections by order dated 06.03.2017 allowed the application in part in both the suits and directed both the parties to maintain status-
quo in respect of the suit schedule properties mentioned therein. Aggrieved by said orders, the plaintiff in both the suits filed appeal in MA No.14/2017 and MA No.15/2017 before the lower appellate Court. The lower appellate Court allowed the appeals and granted injunction in both the appeals. Hence, the present writ petitions are filed.
6. Sri.K.Vijaykumar, learned counsel for the petitioner contended with vehemence that the impugned order passed by the lower appellate Court reversing the order passed by the trial Court is erroneous and contrary to the material on record. He would further contend that the lower appellate Court while granting injunction for the first time, shifted the burden on the defendant, thereby proceeded to pass the erroneous order. He further contended that the lower appellate Court has not considered the registered gift deed and the revenue documents entered thereupon and proceeded to set aside the order passed by the trial Court and granted injunction for the first time and the same is without any basis. Admittedly, the plaintiff filed the suit for declaration and permanent injunction based on registered sale deeds dated 14.08.1995 and 07.06.1995 in both suits and the defendant in both the suits claims his rights based on the registered gift deed dated 31.3.1993 in respect of the property in question. The same has not been considered by the lower appellate Court.
7. Per contra, Sri G.S. Venkat Subba Rao, learned counsel for the respondent-plaintiff sought to justify the impugned order passed by the appellate Court and contended that originally the suit is for bear injunction. Subsequently after the order passed by the trial Court on I.A. No.1 filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure, during the pendency of the Miscellaneous Appeal before the appellate Court, an application came to be filed for declaration in respect of the suit property. The said application is still pending consideration. He further contended that though the defendant is claiming right by virtue of the gift deed dated 31.3.1993, it was acted upon only on 09.12.2016. Therefore the lower appellate Court was justified in granting injunction. He would further contend that the impugned order passed by the lower appellate Court cannot be interfered by this Court exercising the powers under Article 227 of the Constitution of India. Accordingly, he sought to dismiss the writ petitions.
8. Having heard the learned counsel for the parties, it is an undisputed fact that the plaintiff filed the suits for declaration and permanent injunction in respect of the property in question, contending that he is the owner in possession. The same was disputed by the defendant by fling the written statement, contending that he is the owner by virtue of the registered gift deed dated 31.3.1993 and the revenue entries are also entered in his name.
9. The trial Court considering the application and the objections recorded a finding that on perusal of the material placed before the Court, it is very clear that there is gift deed executed in favour of the defendant in the year 1993 and the plaintiff has also got produced the registered GPA executed in the year 1994 and also the gift deed dated 07.11.2006 and also the sale deeds executed in favour of her previous vendor along with revenue katha issued by the concerned Panchayath. It is also clear from the materials on record that there is partition suit pending before the Senior Civil Judge, Devanahalli in respect of the property bearing Sy.No.11/1 measuring 1 acre 24 guntas. But the present case in hand is for the permanent injunction and the core question to be adjudicated here is the possession over the suit property. Both the plaintiff and the defendant have produced their set of facts and relied on the documents, which would to some extent substantiate the claim of both the parties, but if the Court allows or reject the application, it would invariably affect the right of the parties. Since it is at premature stage and the disputed fact has to be decided after going through the fair trial and after getting the cogent and reliable piece of evidence produced and adduced by both the parties, the trial Court directed both the parties to maintain status-quo in respect of the suit schedule property.
10. The lower appellate Court while reversing the order of the trial Court has to record as to how the trial Court directing both the parties to maintain status-quo till disposal of the suit, is erroneous and contrary to the material on record. No such finding is recorded. The lower appellate Court proceeded to grant injunction based on the sale deeds and the revenue documents relied upon by the plaintiff, but ignored the fact that the gift dated 31.3.1993 is earlier to the sale deed.
11. The lower appellate Court recorded a finding that the document produced by the defendant reveal that on 31.3.1993 one Mr. B. Annaiappa executed a gift deed in favour of minor B.A. Prasanna Kumar, now major, in respect of certain survey numbers and no doubt, the revenue records in respect of the land in Sy.No.11/1 measuring 1 acre 24 guntas has been changed into the name of the defendant on the basis of the gift deed. But, the RTC changed in the name of the defendant only on 9.12.2016. The lower appellate Court further recorded a finding at paragraph-19 of the judgment that prima facie it appears that though the gift deed executed on 31.3.1993 stating that the agricultural property gifted to the defendant by his father, it has not acted upon as could be seen from the revenue records and changed into the name of the defendant only in the year 2016. Accordingly, the lower appellate Court modified the order passed by the trial Court and granted an order of injunction in favour of the plaintiff.
12. It is also brought to the notice of this Court by Sri Venkata Subba Rao, learned counsel for the respondent - plaintiff that during the pendency of the Miscellaneous Appeal, an application came to be filed for declaration in respect of the suit property. The said application is pending. In view of the above, the order passed by the lower appellate Court reversing the discretionary order passed by the trial Court and granting Temporary Injunction, cannot be sustained. The documents are produced by both the parties and the defendant claiming his right on the basis of the gift deed dated 31.3.1993 and the plaintiff claiming his right on the basis of the sale deed dated 14.08.1995 and 07.06.1995. Therefore, in order to maintain the property intact, the trial Court was justified in directing both the parties to maintain status quo. Such a discretionary order passed by the trial Court cannot be interfered unless the order passed by the trial Court is perverse, illegal and contrary to the material on record. It is not so in the present case.
13. In view of the above, the order passed by the lower appellate Court reversing the order passed by the trial Court and granting Temporary Injunction is without any basis. The same cannot be sustained.
14. For the reasons stated above, the writ petitions are allowed. The impugned orders dated 03.08.2018 passed by the lower appellate Court made in M.A. No.14/2017 and M.A.No.15/2017 on the file of the Senior Civil Judge & JMFC, Devanahalli respectively is hereby quashed and the order passed by the trial Court dated 06.03.2017 on I.A. No.1 in O.S.No.8/2017 and O.S.No.10/2017 are restored. Both the parties are directed to maintain status quo in respect of the suit schedule property, till the disposal of the suit.
15. Any observations made by this Court shall not come in the way of either of the parties to establish their case before the trial Court and the trial Court shall decide the suit based on the oral and documentary evidence to be adduced and produced by both the parties and pass appropriate orders strictly in accordance with law.
Ordered accordingly.
Sd/- JUDGE UN