IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL NO.5770/2016 BETWEEN:
SRI S.BABU MAHENDER S/O SRI C.K.SUKUMARAN AGED ABOUT 50 YEARS R/AT #802, 8TH MAIN 4TH ‘B’ CROSS, HRBR LAYOUT 1ST BLOCK, KALYAN NAGAR BANGALORE – 560 043 … APPELLANT (BY SRI R.KIRAN, ADVOCATE) AND:
1. JAI SAI PROPERTIES A REGISTERED PARTNERSHIP FIRM HAVING ITS OFFICE AT G-1, JAI SAI SANKALP APARTMENT SY.NO.149/1, 5TH MAIN MALLESHPALYA (NEAR NCFE SCHOOL) BANGALORE – 560 075 REPRESENTED BY ITS PARTNER 2. SRI BABU G.
S/O SRI GURAPPA M. AGED ABOUT 38 YEARS R/AT OLD NO.131 NEW NO.88, OLD TIPASANDRA MARIYAMMA TEMPLE STREET BANGALORE – 560 075 … RESPONDENTS (BY SRI Y.R.SADASIVA REDDY, SENIOR COUNSEL FOR SRI S.K.VENKATACHALAPATHI, ADVOCATE FOR R1; NOTICE TO R2 DISPENSED WITH) THIS MFA IS FILED UNDER ORDER XLIII RULE 1(r) OF CPC PRAYING TO SET ASIDE THE ORDER DATED 23.07.2016 PASSED BY THE XXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL, BENGALURU ON THE APPLICATION FILED UNDER ORDER XXXIX RULES 1 AND 2 OF CPC IN O.S.NO.26012/2015.
THIS MFA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T “Whether impugned order of the trial Court rejecting the application of the appellant for temporary injunction suffers arbitrariness or perversity?” is the question involved in this case.
2. Appellant filed O.S.No.26012/2015 before the XXVIII Additional City Civil and Sessions Judge, Mayohall, Bengaluru against the respondents for permanent injunction.
3. The subject matter of the suit was vacant site bearing Khatha No.606/A-M559 situated at New Thippasandra, K.R.Puram Hobli, Bengaluru East Taluk measuring East to West on the Northern side 60 feet, on the Southern side 58 feet and North to South on Eastern side 32 feet, on Western side 32 feet, in all measuring 1888 square feet.
4. One Puttappa was the original owner of the land measuring 6,928.75 square feet and he sold the said land to one Smt.B.K.T.Santhammal under registered sale deed dated 09.11.1961. Out of the said property, Smt.B.K.T.Santhammal sold 5,063 square feet to one Sri T.S.Gopalan under registered sale deed dated 19.10.1977 and retained remaining portion. Legal representatives of Sri T.S.Gopalan sold the said property to one Sri M.Srinivas under registered sale deed dated 09.06.2010. In turn, M.Srinivas sold the said property to defendant No.1 under registered sale deed dated 17.03.2015.
5. In respect of remaining portion of the property, Smt.B.K.T.Santhammal said to have executed an unregistered Will dated 20.05.1988 in favour of one Gurappa, father of defendant No.2. Gurappa gifted the said property in favour of his son i.e. defendant No.2 under registered gift deed dated 29.09.2010.
6. Plaintiff claims that he purchased the entire property gifted to defendant No.2 under the registered sale deed dated 03.10.2015 and since then he is in exclusive possession and enjoyment of the said property. However, he claimed that defendants encroaching upon the northern portion of the said property started construction, therefore filed suit for permanent injunction.
7. In the suit, plaintiff filed I.A.No.1 under Order XXXIX Rules 1 and 2 read with Section 151 of Code of Civil Procedure, 1908 seeking temporary injunction against the defendants from interfering with his peaceful possession and enjoyment of the suit schedule property.
8. On hearing the parties, the trial Court by impugned order rejected the said application holding that out of total area of 6928.75 square feet acquired by Smt.B.K.T.Santhammal, on she selling 5063 square feet to the defendants, only 1865.75 square feet remained for sale to plaintiff, but plaintiff is claiming to be in possession in excess of that. Therefore, it was held that prima-facie plaintiff is claiming excess property than what was conveyed to him.
9. It was further held that as per plaint averment itself, defendants have put up construction under the disputed property. It was held that such construction was on the basis of building licence and approved plan issued by the concerned authority. So far as allegation that defendant No.1 is constructing deviating from the approved plan, it was held that plaintiffs remedy was to approach the competent authority for redressal of such grievance.
10. The order of temporary injunction is purely discretionary order. In exercise of the appellate jurisdiction under Order XLIII Rule 1 of Code of Civil Procedure, 1908 such order can be interfered only if it is shown that the discretion was exercised arbitrarily or in perverse manner.
11. In this appeal vide order dated 21.08.2018 commission consisting of surveyor nominated by the City Survey Department and S.Goverdhan, Advocate was issued for measurement of the properties in accordance with the title deeds of the parties and to submit report.
12. Commission was executed and report was submitted to this Court on 11.12.2018. As per Order XXVI Rule 10 of Code of Civil Procedure, 1908 report of the commissioner forms part of the record. The parties objecting to the same have to summon the commissioner and examine him touching the objections so raised. Said exercise was not done in this case.
13. The contention of the Counsel for the appellant that only surveyor submitted the report and Advocate Commissioner did not submit his report is unacceptable since the Advocate Commissioner is also a signatory to the report. Apart from that, if the material on record is sufficient for deciding the points formulated by this Court for consideration, there is no need to consider the Commissioner’s report.
14. While considering the application for grant of injunction, the Court is basically required to look into the following three aspects:
(i) Whether plaintiff prima facie satisfies his lawful possession as on the date of the suit?
(ii) Whether any irreparable injury would be caused in case injunction is refused?; and (iii) In whose favour balance of convenience lies?
15. Plaintiff filed suit and the application claiming that as on the date of the suit, he is in possession of the property. In para 13 of the plaint he himself has pleaded as follows:
“It is submitted that defendant No.1 is constructing illegally over the suit schedule property even though he does not have any right, title and interest over the same”.
(Emphasis supplied) 16. It is also alleged that defendant No.1 is constructing deviating the sanctioned plan. Unless the contrary is shown it is deemed that building license is issued on ascertaining the possession of defendant No.1.
17. The trial Court went by the plaint allegation itself in calculating the total extent of property that remained with plaintiff’s vendor to convey to the plaintiff. It is submitted that substantial portion of construction has already taken place.
18. Having regard to the material on record, it cannot be said that the trial Court’s finding that the plaintiff has failed to satisfy prima-facie his possession of the disputed area as on the date of the suit suffers arbitrariness or perversity. Therefore, the appeal is dismissed.
19. However the construction effected by defendant No.1 is subject to the result of the suit and defendant No.1 is not entitled to seek any equity later.
In view of dismissal of the appeal pending I.As do stood disposed of.
Sd/- JUDGE KSR