IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JUNE, 2017 BEFORE THE HON’BLE MR.JUSTICE B.VEERAPPA W.P. Nos.59170/2016 & 65677/2016 c/w.W.P.NO.59171/2016 (GM-CPC) IN W.P. Nos.59170/2016 & 65677/2016 BETWEEN SRI. SUBRAMANI.S.M S/O LATE MUNIYAPPA AGED ABOUT 47 YEARS RESIDING AT SUGGATTA VILLAGE HUNASAMARANAHALLI POST JALA HOBLI, BANGALORE NORTH TALUK BANGALORE DISTRICT ... PETITIONER (BY SRI. B.N. SURESH-ADV ON BEHALF OF SRI. NARAYANA SWAMY.P.M-ADV) AND SMT. RENU N.SWAMY W/O SWAMY AGED ABOUT 68 YEARS RESIDING AT NO.831 2ND CROSS, 7TH MAIN ROAD HAL 2ND STAGE, INDIRANAGAR BANGALORE-560038 … RESPONDENT (BY SRI. KARUNAKARA.P –ADV FOR C/R) THESE WPs ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED: 19.02.2014 PASSED BY THE HON'BLE CIVIL JUDGE JR. DIVISION AT DEVANAHALLI, IN O.S.327/2009 ON I.A. No.I UNDER ORDER 39 RULE 1 & 2 OF CPC, AND THE SAID I.A. CAME TO BE DISMISSED VIDE ANNEXURE-A AND M.A.15/2014 ON THE FILE OF THE SR.
CIVIL JUDGE AND JMFC AT DEVANAHALLI AND THE SAME WAS DISMISSED ON 26.10.2016 VIDE ANNEXURE-B AND ALLOW THIS WRIT PETITION.
IN W.P.NO.59171/2016 BETWEEN SRI. SUBRAMANI.S.M S/O LATE MUNIYAPPA AGED ABOUT 47 YEARS RESIDING AT SUGGATTA VILLAGE HUNASAMARANAHALLI POST JALA HOBLI, BANGALORE NORTH TALUK BANGALORE DISTRICT ... PETITIONER (BY SRI. B.N. SURESH-ADV ON BEHALF OF SRI. NARAYANA SWAMY.P.M-ADV) AND SMT. RENU N.SWAMY W/O SWAMY AGED ABOUT 68 YEARS RESIDING AT NO.831 2ND CROSS, 7TH MAIN ROAD HAL 2ND STAGE, INDIRANAGAR BANGALORE-560038 REPRESENTED BY HER SPA HODLER SRI. C.BALACHANDRA S/O LATE B.N.CHANDRASHEKAR AGED ABOUT 46 YEARS R/AT NO.12, SN LAYOUT 2ND STAGE, MAHALAKSHMIPURAM BANGALORE-560086 ... RESPONDENT (BY SRI. KARUNAKARA.P –ADV FOR C/R) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED:26.10.2016 IN M.A.NO.14/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC AT DEVANAHALLI AND SAME WAS ALLOWED ON 26.10.2016, VIDE ANNEXURE-B AND ALLOW THIS WRIT PETITION.
THESE WPs COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The plaintiff has filed the present writ petitions against the impugned order dated 26.10.2016 passed by the Appellate Court in MA Nos.14 and 15 of 2014 allowing the appeal-MA 14/2014 filed by the defendant and dismissing the appeal filed by the plaintiff in appeal-MA 15/2014 by confirming the order of the Trial Court wherein the application for temporary injunction has been rejected.
2. Since the facts are similar, both the petitions are taken up for consideration.
The brief facts of the case are:
3. The plaintiff filed a suit for bare injunction in O.S.No.327/2009 against defendant contending that he is the owner, in possession and enjoyment of the suit schedule property and that the defendant has no manner of right, title or interest in respect of the suit schedule property.
4. The defendant filed the written statement, denied the entire plaint averments and contended that he is the owner in possession of the suit schedule property and sought for dismissal of the suit.
5. During the pendency of the suit the plaintiff also filed applications- I.A.I for injunction restraining the defendant from interfering with his peaceful possession and enjoyment over the suit schedule property and another application-I.A.II seeking to restrain the defendant from alienating or encumbering the suit schedule property in any manner by way of an ad-interim temporary injunction pending disposal of the suit reiterating the plaint averments.
6. The said applications filed by the plaintiff under Order 39 Rules 1 and 2 were resisted by the defendant by filing objections. The trial Court by order dated:19.2.2014 rejected I.A.1 for temporary injunction and allowed I.A.2 directing the defendant not to alienate the suit schedule property.
7. Being aggrieved by the said orders passed by the trial Court, the defendant filed MA 14/2014 directing not to alienate the suit schedule property and plaintiff filed MA 15/2014 rejecting the prayer for temporary injunction.
8. The Lower Appellate court after hearing both the parties by the impugned order dated 26.10.2016 allowed the appeal filed by the defendant and dismissed the appeal filed by the plaintiff confirming the order passed by the Trial Court rejecting the prayer for temporary injunction. Hence the present writ petitions are filed.
9. I have heard the learned counsel for the parties to the lis.
10. Sri.B.N.Suresh, learned counsel for the plaintiff- appellant in both the appeals, vehemently contended that the impugned order passed by the Appellate Court dismissing the appeal filed by the plaintiff and allowing the appeal filed by the defendant is erroneous and contrary to the material on record, as the Trial Court exercising the discretion has granted an order of injunction restraining the defendant not to alienate the property. The said order ought not to have been interfered with by the lower Appellate Court unless it records the finding that the order passed by the Trial Court is capricious, perverse and contrary to the material on record. He further contended that in a suit filed by the plaintiff for permanent injunction against the defendant, if the order of temporary injunction not to alienate the suit property is granted, no harm would be caused to the defendant. Therefore, he sought to set aside the impugned order passed by the Appellate Court by allowing wit petition.
11. Per contra, Sri.Karunakar P, learned counsel for the defendant, sought to justify the impugned order passed by the Court below and contended that when both the courts below concurrently held that the plaintiff has not made out a prima facie case for grant of temporary injunction, question of granting temporary injunction restraining the defendant from alienating the property does not arise. The same has been considered by the lower Appellate Court and has rightly allowed the appeal filed by the defendant and dismissed the appeal filed by the plaintiff. Therefore, he submitted that this Court cannot interfere with the present writ petitions and sought for dismissal of the present writ petitions.
12. Having heard the learned counsels for the parties to the lis, it is an undisputed fact that the present petitioner filed a suit for injunction contending that he is the owner of the suit schedule property. The same is denied by the defendant and set up his own title. It is also not in dispute that the Trial Court considering the entire material on record recorded a finding of fact that the plaintiff has failed to prove his prima facie possession for grant of temporary injunction and while recording so, the trial Court proceeded to grant temporary injunction directing the defendant not to alienate the property till the disposal. It is also not in dispute that the plaintiff and defendant filed two appeals before the Lower Appellate Court and the Lower Appellate Court considering the entire material on record recorded a specific finding that the plaintiff is none other than the great grand son of Venkatappa through the second son of Venkatappa and grand son of Muniyappa. The defendant is the great grant daughter of Venkatappa through his first son Muniyappa and grand daughter of Thimmakka, daughter of Muniyappa.
13. The Trial Court further held from the year 1973 till 2009, the suit schedule property was standing in the name of his father Muniyappa. The Trial court further held that the revenue records produced by the defendant in respect of the RRT dispute No.139/2008-09 shows that the revenue authorities have passed a detailed order and mutated katha of the suit schedule property in favour of the legal heirs of deceased daughter of one Muniyappa s/o.Venkatappa. On perusal of the records the Trial Court held that there is no prima facie case in favour of the plaintiff and accordingly, rejected I.A.1.
14. The lower appellate Court further recorded that when the plaintiff has no prima facie case, the court cannot restrain the defendant from alienating the suit schedule property. In a suit for bare injunction, the Court has to adjudicate as to whether the plaintiff is in possession of the suit schedule property and whether the defendant is interfering with the suit schedule property of the plaintiff and the court would not adjudicate the title over the suit schedule property. Accordingly, the Appellate Court allowed the appeal filed by the defendant and dismissed the appeal filed by the plaintiff.
15. Both the courts below have concurrently held that the plaintiff has not made out any prima facie case to grant equitable order of temporary injunction. The Lower Appellate Court has modified the order of the Trial Court granting an order of injunction restraining the defendant from alienating the suit schedule property holding that the order passed by the Trial court is capricious and perverse and accordingly, allowed the appeal filed by the defendant and dismissed the appeal filed by the plaintiff. The same is in consonance with law. The plaintiff has not made out any ground to interfere with the impugned order passed by the Appellate Court exercising the powers under Article 227 of the Constitution of India.
Accordingly, the writ petition are dismissed.
Sd/- JUDGE rs