IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA WRIT PETITION NO.17537 OF 2015 (GM-CPC) BETWEEN:
Wilson Sequeira S/o Sri. Albert Sequeira, Aged about 42 years, R/at Old Post Office Road, Shivamogga City-577 201.
…PETITIONER (By Sri. S. Narendra, Advocate for Sri. Chandrashekara Reddy M.V., Advocate) AND:
George Navin Sequerira S/o Jeroni Sequeira, Aged about 41 years, R/at Canara Metal Industry, O.T. Road, Shivamogga City-577 201.
(By Sri. P.N. Harish, Advocate) ... RESPONDENT This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the order dated 11.03.2015 passed by the II Addl. Senior Civil Judge at Shivamogga in M.A.No.54/2014 as per Annexure-A in confirming the order dated 26.08.2014 as per Annexure-B of the Principal Civil Judge & JMFC at Shivamogga passed on I.A.No.2 filed in O.S.No.402/2013.
This Writ Petition coming on for Preliminary Hearing in ‘B’ Group, this day, the court made the following:
O R D E R The unsuccessful plaintiff is before this Court against the impugned order dated 11.03.2015 passed in M.A.No.54/2014 on the file of II Additional Senior Civil Judge, Shivamogga, confirming the order dated 26.08.2014 passed on I.A.No.2 in O.S.No.402/2013, rejecting the application for temporary injunction.
2. The plaintiff filed a suit for permanent injunction in respect of suit schedule property more fully described in the schedule of the plaint, contending that he is the owner in possession of the suit schedule property by virtue of registered sale deed dated 20.03.2013 and the defendant has no manner of right, title and interest over the suit schedule property, attempted to interfere and therefore, the plaintiff has filed a suit.
3. The defendant has filed written statement and denied plaint averments and contended that they are the joint owners of the suit schedule property and there is a suit pending adjudication between the defendant and vendor of the present plaintiff in O.S.No.402/2013. Therefore, plaintiff is not entitled to any temporary injunction against the co-owners of the vendors of the plaintiff in respect of the property in question. Therefore, sought for dismissal of the suit.
4. Along with the plaint, the plaintiff has also filed I.A.No.2 for temporary injunction, under Order XXXIX Rule 1 and 2 Code of Civil Procedure, reiterating the averments made in the plaint. The same was opposed by the defendants by filing objections, reiterating the averments of the written statement. The trial court, considering the application and objections, by the impugned order dated 26.08.2014, recorded a finding that the plaintiff has not made out any prima facie case for grant of temporary injunction. Therefore, the plaintiff is not entitled for the relief and accordingly, rejected the application.
5. Aggrieved by the said order, the plaintiff had filed M.A.No.54/2014 before the II Additional Senior Civil Judge, Shivamogga, who after hearing both the parties, by the impugned order dated 11.03.2015, dismissed the appeal confirming the order passed by the trial court rejecting the application for temporary injunction. Hence, the present petition.
6. Heard the learned counsel for both parties to the lis.
7. Sri. S. Narendra, learned counsel appearing for Sri. Chandrashekara Reddy M.V., learned counsel appearing for petitioner has vehemently contended that the impugned order passed by the appellate court confirming the order passed by the trial court, rejecting the order of temporary injunction is erroneous and contrary to the material on record. Learned counsel for petitioner further contended that both the courts below have not considered the material documents produced by the plaintiff to prove that the he was in possession as on the date of filing of the suit. The non-consideration of material documents relied upon by the plaintiff has resulted in miscarriage of justice and therefore he sought to quash the impugned orders passed by the courts below by allowing the writ petition.
8. Learned counsel for respondent/defendant sought to justify the impugned order and contended that when the suit filed by the defendant against the vendors of present plaintiff for partition and separate possession in respect of the property in question, the very suit filed by the plaintiff on the basis of sale deed is not maintainable. Therefore, learned counsel sought to justify the impugned orders.
9. Having heard the learned counsel for both parties, it is not in dispute that the plaintiff had filed a suit on the basis of registered sale deed and that he is the owner in possession of the same. The defendant has filed written statement and contended that the very sale deed is the subject matter of the suit for partition, which was filed against the vendors of the plaintiff and that the very suit itself is not maintainable. The courts below considering the material on record, concurrently recorded a finding that the plaintiff has not proved prima facie case for grant of temporary injunction and since the plaintiff has purchased the property in question during the pendency of the suit in O.S.No.402/2013, the purchase would be hit by provisions of Section 52 of the Transfer of Property Act. When the suit between the original parties is pending and during the pendency of the proceedings, the plaintiff has purchased the property in question, the same is always hit by provisions of Section 52 of Transfer of Property Act and the sale deed would be subject to result of the pending suit in O.S.402/2013. The lower appellate court, on re-appreciation of material on record, has confirmed the order passed by the trial court rejecting the application for temporary injunction.
10. When both the courts, based on the pleadings and material on record, concurrently held that the plaintiff has not proved prima facie possession as on the date of the suit, such finding of fact recorded by the court below cannot be interfered by this Court under Article 227 of the Constitution of India.
11. In view of the above, the writ petition is dismissed.
However, taking into consideration the dispute between the parties, the trial Court is directed to expedite the suit subject to co-operation between the parties.
It is needless to observe that the sale deed made in favour of the present plaintiff during the pendency of the suit between the vendors of plaintiff and the present defendant is always subject to result of the suit in O.S.No.402/2013, pending adjudication between the parties.
Sd/- JUDGE BMC