IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR M.F.A.NO.5529 OF 2017 (CPC) BETWEEN:
Sri Syed Sajeed Pasha S/o Sri S.A.Hameed Aged about 48 years R/at Ground Floor, No.45/1 Marappa Block, J.C.Nagar Bengaluru – 560 006 …Appellant (By Sri G.B.Nandish Gowda, Advocate for Sri R.B.Sadasivappa, Advocate) AND:
Sri Idris Burhan S/o Late Sri Safeer Burhan Aged about 50 years R/at Ground Floor, No.45/1 Marappa Block, J.C.Nagar Bengaluru – 560 006 ... Respondent (By Sri Syed Abdul Saboor, Advocate for C/R) This Miscellaneous First Appeal is filed under Order 43 Rule 1(r) of the CPC, against the order dated 13.04.2017 passed on IA No.1 in O.S.No.1922/2017 on the file of the XII Additional City Civil and Sessions Judge (CCH No.27), Bengaluru, dismissing the IA No.1 filed under Order 39 Rules 1 and 2 r/w Section 151 of CPC.
This appeal coming on for admission this day, the Court delivered the following:
JUDGMENT This appeal is filed by the plaintiff aggrieved by the Order of the trial Court dated 13.04.2017 dismissing the application filed under Order 39 Rules 1 and 2 of CPC.
2. Plaintiff’s case is that, he is in possession of the suit property on the strength of a Lease Agreement executed by one Mr. Safeer Burhan for a period of five years on receiving Rs.10,00,000/- from him. Plaintiff alleged that on 14.03.2017 the defendant i.e., son of Safeer Burhan tried to dispossess him unlawfully from the suit property and therefore he filed a suit for permanent injunction. He also filed an application under Order 39 Rules 1 and 2 of CPC seeking an order of temporary injunction.
3. The defendant’s case is that the plaintiff is not in possession of the suit property. The plaintiff is none other than his brother-in-law. Suit property earlier belonged to his father, who gifted the same to him by executing Gift Deed on 28.08.2013. On the basis of the said Gift Deed, he became the absolute owner of the suit property. Since the defendant’s father was not keeping good health, the plaintiff’s wife, i.e., his sister used to visit his house to look after her father. At that time, the plaintiff and his wife requested the defendant for financial assistance, accordingly, the defendant paid an amount of Rs.6,00,000/- to the plaintiff’s wife on different dates. She acknowledged the receipt of this amount and she removed all her belongings from the ground floor of the suit property.
She was not in possession of the suit property as on the date of the suit.
4. Trial Court after evaluating the materials placed before it, came to the conclusion that the defendant became the absolute owner of the suit property by virtue of the Gift Deed dated 28.08.2013. The plaintiff accepted the Gift and took vacant possession of the suit property from his father. The trial Court doubted the genuineness of the Lease Agreement. It has also observed that the plaintiff handed over the vacant possession of the suit property to the defendant and therefore, prima-facie case was not made out for grant of temporary injunction. For these reasons, IA No.1 was dismissed.
5. I have heard the arguments of appellant’s counsel and the respondent’s counsel.
6. The appellant’s counsel submits that the trial Court has committed an error in giving a finding that the plaintiff was not in possession of the suit property on the date of the suit. He refers to the Lease Agreement to argue that it was executed by the father of the defendant. Though the plaintiff does not dispute the ownership of the defendant over the suit property by virtue of the Gift Deed, but on the date of the suit, plaintiff was in possession and therefore, if at all the defendant had to take possession, it must be only according to due process of law. With reference to the receipt executed by the plaintiff’s wife, he argues that it is a created document and the plaintiff has not received any sum as mentioned in the receipt. Therefore, he argues that the trial Court has not properly exercised its discretion while disposing of application for temporary injunction.
7. On the other hand, the defendant/ respondent’s counsel argues that the trial Court has considered all the materials to come to a conclusion that the plaintiff was not in possession of the suit property on the date of the suit. When the plaintiff does not dispute the ownership of the defendant by virtue of Gift Deed and that the plaintiff’s wife handed over the vacant possession of the suit property by executing a receipt, it means to say that she was not in possession of suit property on the date of the suit. Rightly, the trial Court come to the conclusion that the plaintiff was not in possession of the suit property; no prima-facie case was made out. Thus, he argues to sustain the orders of the trial Court.
8. After hearing both sides, I come to the conclusion that the trial Court has not committed any error in rejecting the application. The plaintiff has to make out his possession on the date of the suit. The plaintiff does not dispute the Gift Deed. Perusal of the Gift Deed shows that the Donor i.e., defendant’s father handed over the physical possession of the suit property to the defendant on the day when he executed the Gift Deed. In Clause(6) of the Gift Deed, it is recited that the Donor retained one portion of the suit property for his residence and after his death, said portion should be handed over by the Donor’s daughter i.e., plaintiff’s wife to the defendant. The receipt produced by the defendant shows that on 03.09.2016 itself, plaintiff’s wife handed over the vacant possession of the suit property to the defendant by receiving an amount of Rs.6,00,000/- (Six Lakhs only) from the defendant.
9. Whether this receipt is a genuine document or not is a matter to be established before the trial Court. But, while deciding an application for temporary injunction, the Court cannot give any finding on the said document. However to examine whether there exists a prima facie case or not, the documents can be looked into. If for this limited purpose, the receipt produced by the defendant is seen, it discloses that the plaintiff was not in possession as on the date of suit. Therefore, in my opinion, the trial Court has rightly dismissed the application for temporary injunction. I do not find any good ground to interfere.
Therefore, the appeal is dismissed.
IA No.1/2017 does not survive for consideration, in view of dismissal of the appeal. Accordingly it is dismissed.
KMV* Sd/-
JUDGE