IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.1591 OF 2016 BETWEEN M/s. United Mega Builders Pvt. Ltd., Having its registered office at No.32/1 and 2, Crescent Road, High Grounds, Bengaluru-560001. Authorized Representative Sri. Gautam Dassharma.
(By Sri. Manjunath K.V., Advocate) AND M/s. Shri. Adinath Jain Shwethamber Temple Trust (R) Head office at Marwari Temple Street, Chickpet, Bengaluru-53.
Rep. by its President Sri. Tejraj B Nagori, S/o. Babuthmalji, Aged about 64 years.
(By Sri. Harish Kumar M.S., Advocate) …Appellant …Respondent This RFA is filed under Section 96 of CPC, against the judgment and decree dated 30.06.2016 passed in O.S.No.7710/2012 on the file of the XXXI Additional City Civil and Sessions Judge, Bengaluru, decreeing the suit for injunction.
This RFA coming on for admission, this day, the Court made the following :
JUDGMENT Heard the appellant’s counsel and the respondent’s counsel at the time of admission.
2. The appellant is the defendant in O.S.No.7710/2012. The respondent in this appeal being the plaintiff in the said suit sought for permanent injunction to restrain the appellant from interfering with its peaceful possession and enjoyment of the property bearing Sy.No.12 of Bogenahalli village, bearing present municipal No.77, Binny Mill Layout, Ward No.31, Bengaluru measuring East to West 102.34 meters and North to South 38.17 meters on the Eastern side and 40.95 meters on the Western side, totally measuring 43500 sq.ft. (suit property). The plaintiff is a trust. It claims to have purchased the suit property under a registered sale deed dated 28.07.2012. The vendor of the plaintiff purchased the suit property in a public auction held by Debt Recovery Tribunal on 24.03.2012. The plaintiff pleaded that the defendant tried to interfere with its possession and therefore the suit came to be filed.
3. The appellant/defendant contended that the suit property was subject matter of auction sale held on 24.03.2012. The said auction was challenged before the Debt Recovery Tribunal by filing ASA.No.261/2012 and it is still pending consideration. It also contended that the possession of the suit property remained with it in spite of auction being held.
4. The trial court framed issues and recorded the evidence of PW-1. He got marked 32 documents as per Ex.P.1 to P.32. The defendant did not lead evidence. The trail court, after appreciating the evidence, came to conclusion that the suit should be decreed.
5. The learned counsel for the appellant/defendant argues that the defendant was not provided with an opportunity to lead evidence in the suit. The possession of the suit property is still with the defendant. The trial court should not have passed a decree against the defendant. The learned counsel for the respondent/plaintiff contends that the suit is not maintainable. The defendant availed loan from State Bank of Mysore and since he defaulted in making payment, proceedings before the Debt Recovery Tribunal was initiated. Thereafter pursuant to the order passed by the Debt Recovery Tribunal, auction was held. One M/s.Deepak Cable purchased the suit property in the auction and then it sold the same to the plaintiff. Having considered the possession of the suit property being handed over to the purchaser in the auction and thereafter to the plaintiff, the trial court came to conclusion that the possession was with the plaintiff on the date of suit and therefore rightly the suit came to be decreed.
5. The plaintiff produced all the title deeds of the suit property and they were marked also. Ex.P.23 is the sale certificate dated 11.05.2005. If the defendant defaulted in repaying the loan to the Bank and if subsequently auction was held consequent to the order passed by the Debt Recovery Tribunal, it cannot be said that the auction purchaser did not take possession of the suit property. The defendant is the borrower from the Bank. Probably having lost in the proceedings before the Debt Recovery Tribunal, he might have interfered with the plaintiff’s possession. Whatever may be his contention, his possession cannot be interfered at all. If plaintiff was able to produce all the documents of the suit property and get them marked, it is possible to say that but for possession being delivered to auction purchaser, and from him to plaintiff, it would not have been possible for the plaintiff to produce all the property documents. The trial court has assessed the materials on record properly. There are no merits in this appeal. Therefore appeal is dismissed.
Sd/- JUDGE sd