IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL NO.7733 OF 2019 BETWEEN:
SRI PRAKASH B.G.
S/O LATE T.S.GANGAPPA AGED ABOUT 57 YEARS NO.3/1, 12TH CROSS K.P.AGRAHARA MAGADI ROAD BENGALURU-560 023 … APPELLANT (BY SRI ARUN K.S., ADV.) AND:
1. SMT.ANITHA M W/O SRI PRAKASH B.G AGED ABOUT 46 YEARS NO.217, 2ND FLOOR, 4TH MAIN SAMPIGE LAYOUT VIJAYANAGAR BENGALURU-560 079 2. SMT KAVYA.P W/O SRI DILIP R AGED ABOUT 25 YEARS NO.217, 2ND FLOOR, 4TH MAIN SAMPIGE LAYOUT VIJAYANAGAR BENGALURU-560 079 3. SRI DILIP R S/O SRI RAJENDRA C NO.217, 2ND FLOOR, 4TH MAIN SAMPIGE LAYOUT VIJAYANAGAR BENGALURU-560 079 4. SRI N.SATHISH S/O SRI.K.NANJE GOWDA AGED ABOUT 39 YEARS RESIDING AT NO.20/2-1 20TH CROSS, 5TH MAIN K.P.AGRAHARA MAGADI ROAD BHUVANESHWARI NAGAR BENGALURU-560 023 … RESPONDENTS (BY SRI SHIVAPRASAD SHANTANAGOUDAR, ADV. FOR R1 – R3;
SRI. NISHANTH A.V., ADV. FOR R4) THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) READ WITH SECTION 104 OF CPC, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 09.09.2019 PASSED BY THE XXVII ADDITIONAL CITY CIVIL JUDGE (CCH-9) IN O.S.NO.5673/2016, BENGALURU ON I.A.NOS.7 AND 8.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT “Whether the impugned order of rejection of applications of the appellant for injunction by the trial Court suffers arbitrariness or perversity?” is the question involved in this case.
2. Respondent No.1 is the wife, respondent No.2 is the daughter and respondent No.3 is the son-in-law of the appellant. The appellant filed O.S.No.5673/2016 initially against respondent Nos.1 to 3 for permanent injunction.
3. The subject matter of the suit was vacant site bearing No.23/1-2 measuring 660 Sqft. situated at 20th Cross, Bhuvaneshwarinagar, K.P.Agrahara, Bengaluru.
4. Pending the suit, respondent No.4 purchased the property on 15.03.2019. On his application he was impleaded in the case as defendant No.4. The suit property was sold to respondent No.1 by one Smt.Gangamma under the registered sale deed dated 22.07.1999. Respondent No.1 has conveyed the said property to defendant No.2 under the registered gift deed dated 15.06.2016.
5. The plaintiff filed the suit contending that he purchased the suit property in the name of defendant No.1 out of his funds and therefore, he is the absolute owner of the property and he is in possession. He further contended that because of the broken relationship between him and defendant No.1, the subsequent alienations are made to deprive him from the property.
6. He filed I.A.No.1 in the suit seeking temporary injunction against defendant Nos.1 to 3 to restrain them from interfering with his possession. That application was rejected on 22.07.2017 on merits. He challenged that order before this Court in M.F.A.No.8794/2017.
7. On 05.02.2018, the appellant herein withdrew his M.F.A.No.8794/2017. Thereafter, on 17.06.2019, the appellant filed I.A.Nos.7 and 8 before the trial Court seeking injunction against respondent No.4 herein to restrain him from alienating the suit schedule property and from interfering in his possession.
8. The trial Court on hearing the parties by the impugned order dismissed the applications holding that the appellant has failed to make out the prima facie case of his right and possession and that the similar application was already rejected and that order has become final.
9. Sri.Arun K.S., learned counsel for the appellant submits that the very fact of the title deeds being in plaintiff’s possession show that he is the absolute owner of the property. He further submits that the matter requires full pledge trial and in the meantime, if the property is alienated and the nature of property changed the appellant will be put to irreparable injury.
10. Per contra, Sri. Shivaprasad Shantanagoudar and Sri.Nishanth A.V., learned counsel for respondent Nos.1 to 4 submit that since ostensibly sale deed and Katha certificate etc., were standing in the name of defendant No.1 and plaintiff failed to show that he contributed the funds, the trial Court was justified in holding that the plaintiff has not made out the prima facie case. They further submit that in the light of dismissal of I.A.No.1 the second application was wholly untenable.
11. The principles in consideration of an application for injunction are:
(i) Whether the applicant has made out prima facie case of his right?;
(ii) Whether the applicant has made out prima facie case of injury to his right?; and (iii) In whose favour the balance of convenience lies?
12. The sale deed was standing in the name of defendant No.1 since 22.07.1999. For about 17 years the plaintiff did not lay any claim of his absolute ownership over the property. The Katha was standing all along in the name of defendant No.1. The sale deed produced by the plaintiff himself specifically states that the vendor has received the consideration from the purchaser. Therefore, in view of Section 91 of the Indian Evidence Act, 1872 taking up contention contrary to the contents of the document, and leading of such evidence prima facie barred.
13. The sale deed states that the purchaser namely defendant No.1 is put in possession. Katha certificate and other records stand in the name of defendant No.1. To crown all this, the earlier application filed by the appellant with a similar contention was rejected on merits and that order attained finality.
14. It was contended that the trial Court has not yet framed the issues. Unless prima facie case of his right is made out, injunction cannot be granted merely on the ground that the trial may take some time.
15. Under such circumstances, by no stretch of imagination, it can be said that the trial Court acted arbitrarily in holding that the appellant has failed to make out prima facie case of his right.
16. When no prima facie case of right was made out, the question of considering the other two aspects namely prima facie case of injury to his right and balance of convenience does not arise. The appeal deserves no merit and dismissed accordingly.
In view of dismissal of the appeal, I.A.Nos.1/2019 and 2/2019 stood disposed of.
Sd/- JUDGE KG