IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15th DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.41391/2018 (GM-CPC) 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., ADV.) AND:
SRI.AUGUSTINE RATHNASWAMY, S/O ANNAIAPPA, AGED ABOUT 54 YEARS, R/AT NO.101, 5TH CROSS, RAJAHAL VILAS EXTENSION II STAGE, BENGALURU – 560 094.
... RESPONDENT (BY SRI A RAJESH, ADVOCATE FOR SRI G.S.VENKAT SUBBA RAO, ADVOCATE FOR C/R) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN M.A.NO.13/2017 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.13/2017 VIDE ANNEXURE – A AND CONSEQUENTLY DISMISS THE M.A.NO.13/2017 BY CONFIRMING THE ORDER DATED 06.03.2017 PASSED IN O.S.NO.6/2017 ON I.A.NO.1 (ANNEXURE – F ) BY THE ADDL. CIVIL JUDGE & JMFC AT DEVANAHALLI AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendant filed the present writ petition against the order dated 3.8.2018 made in M.A. No.13/2017 on the file of the Senior Civil Judge & JMFC, Devanahalli modifying the order dated 6.3.2017 on I.A. No.1 in O.S. No.6/2017, allowing the appeal and granting injunction restraining the defendant from interfering with the suit schedule property, pending disposal of the suit.
2. The present respondent who is the plaintiff before the trial Court filed the suit for Permanent Injunction in respect of the suit schedule property, contending that he is the owner in possession and enjoyment of the suit schedule property and the defendant has no manner of right, title and interest over the suit schedule property.
3. The defendant filed the written statement and denied the plaint averments and contended that the defendant is in possession and enjoyment of the suit schedule property by virtue of the registered gift deed dated 31.3.1993 and he is the absolute owner and the plaintiff has not come to the Court with clean hands and therefore he is not entitled to any relief and sought for dismissal of the suit.
4. The plaintiff also filed an application for Temporary Injunction reiterating the plaint averments.
The said application was resisted by the defendant, reiterating the averments made in the written statement. The trial Court considering the application and the objections by the impugned order dated 6.3.2017 allowed the application in part and directed both the parties to maintain status-quo in respect of the suit schedule property. Aggrieved by the said order passed, the plaintiff filed appeal in M.A. No.13/2017. The lower appellate Court allowed the appeal and granted Temporary Injunction. Hence the present writ petition is filed by the defendant.
5. I have heard the learned counsel for the parties to the lis.
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 further contended 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 Permanent Injunction based on the 1995 sale deed and the defendant claiming his right 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. Hence sought to allow the writ petition.
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 for 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 9.12.2016. 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 petition.
8. Having heard the learned counsel for the parties, it is an undisputed fact that the plaintiff filed the suit for 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 sale deed dated 07.06.1995 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 deed 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 been 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 7.6.1995. 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 petition is allowed. The impugned order dated 3.8.2018 passed by the lower appellate Court made in M.A. No.13/2017 on the file of the Senior Civil Judge & JMFC, Devanahalli is hereby quashed and the order passed by the trial Court dated 6.3.2017 on I.A. No.1 in O.S. No.6/2017 is 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.
Sd/- JUDGE HR