Dismissed

Sri Padmaraju Subbaramaraju v. Mr Shaji Paul

Karnataka HC29 Sept 2021MFA/2552/2021

Case brief

AI extract

What is this about?

The High Court dismissed a miscellaneous first appeal against the trial court's order rejecting a temporary injunction application. The court held that the appellant failed to establish a prima facie case of lawful possession due to conflicting title deeds and the finality of a judgment favoring the respondent's vendor.

What did the court decide?

The miscellaneous first appeal was dismissed with costs; pending applications were disposed of.

Sri Padmaraju Subbaramaraju Vs Mr Shaji Paul — Property and Title | Karnataka HC (2021)

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M.F.A.NO.2552/2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29^TH DAY OF SEPTEMBER 2021

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BEFORE

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THE HON’BLE MRS JUSTICE K.S.MUDAGAL

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MISCELLANEOUS FIRST APPEAL NO.2552/2021(CPC)

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BETWEEN:

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SRI.PADMARAJU SUBBARAMARAJU S/O SRI.P.RAGHURAM RAJU AGED ABOUT 51 YEARS R/AT. NO.21, SAMPANGI RAMAIAH LAYOUT VINOBHA NAGAR K.G.HALLI A.C.POST BENGALURU-560 045 … APPELLANT

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(BY SRI.N.R.RAGHAVENDRA, ADV.)

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AND:

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MR.SHAJI PAUL S/O LATE DAVID POUL AGED ABOUT 61 YEARS R/AT C/O L T, COL, . MINI K K INHS DHANAVANTARI ,MINI BAY PORTBLAIR – 744 103

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PRESENTLY R/AT C/O GEORGE JOSEPH NO.5, 1^ST MAIN, B CROSS VIGNANANAGAR, NEW THIPPASANDRA POST BENGALURU – 560 075 … RESPONDENT

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(BY SRI H.A.MANJUNATH PRASANNA, ADVOCATE FOR C/R)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1 (R) OF THE CPC PRAYING TO AGAINST THE ORDER DATED 21.04.2021 PASSED ON I.A.NO.1 IN O.S. NO.25656/2020 ON THE FILE OF THE LXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU (CCH-74),

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M.F.A.NO.2552/2021

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DISMISSING I.A. FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF CPC.

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THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Aggrieved by the rejection of his application (IA No.1) for temporary injunction by the Trial Court, the plaintiff has preferred the above appeal.

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The appellant was the plaintiff and the respondent was the defendant in O.S.No.25656/2020. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court.

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The plaintiff has filed O.S. No.25656/2020 against the defendant before LXXIII Addl. City Civil & Sessions Judge, Mayohall Unit, Bangaluru for permanent injunction restraining the defendant or anybody claiming through him from interfering with his peaceful possession.

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M.F.A.NO.2552/2021

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The subject matter of the suit are site Nos.4 and 5 carved out of land bearing Sy.No.131/6 situated at Horamavu village, KR Puram Hobli, Bangaluru East each measuring 30x40 feet.

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The case of the plaintiff in brief is as follows:

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The land bearing Sy.No.131/6 originally belonged to one Ramaiah. Ammayamma Bhagyalakshmi, Manjula, Girija, the daughters of Ramaiah filed O.S.No.15923/2003 against Ramaiah for partition and separate possession of their share. The said suit was decreed on 29.06.2009 in their favour. They filed FDP No.25001/2010 before the City Civil Judge, Mayohall unit, Bengaluru. In the said Final decree petition, the present suit properties were allotted to the share of the plaintiffs therein. They in-turn sold the suit properties to the plaintiff under the registered sale deeds dated 01.09.2017. Since then he is in the lawful possession

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and enjoyment of the said properties. The defendant without any manner of right tried to interfere with his

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M.F.A.NO.2552/2021

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peaceful possession. Therefore he sought decree for permanent injunction.

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In the said suit, he filed IA No.I for Temporary Injunction. Initially the trial court had granted exparte Temporary Injunction. On appearance, the defendant filed written statement and counter claim and a memo to adopt the same as objections to IA No.1.

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The defence of the defendant in brief is as

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follows:

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i) Ramaiah the original owner sold the suit properties to one V.D.John under the registered sale deed dated 29.09.1988 and put him in possession. The said V.D.John in-turn sold the suit properties to the defendant under the registered sale deed on 20.01.1998. All along from the date of the said sale deeds the purchasers are in continuous and peaceful possession and enjoyment of the properties. Defendant has put up a shed;

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M.F.A.NO.2552/2021

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ii) The suit in OS No.15923/2003 and the proceedings in FDP No. No.25001/2010 were collusive one. Challenging the said FDP, one of the purchasers by name Jainamma preferred RFA Nos.686/2017 and 759/2017. This Court allowed those appeals and setaside the preliminary decree and the Final decree relied on by the plaintiff and his vendors. Since the plaintiff's vendor had no title to sell the property, the plaintiff in collusion with his vendors indulged in filing similar suit, and withdrew that. When the plaintiff's vendor interfered with the defendant's possession, he filed OS No.25447/2019 for injunction. The said suit came to the decreed. The title and possession of the plaintiff was disputed.

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The trial Court heard the parties on IA No.I and dismissed the same by the impugned order on the ground that plaintiff has failed to make out prima-facie case. Aggrieved by the said order the above appeal is preferred.

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M.F.A.NO.2552/2021

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Sri N.R.Raghavendra, learned counsel for appellant assails the impugned order on the following grounds:

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i) He was not a party to O.S. No. 25447/2019 or RFA Nos.686/2017 and 759/2017. The documents produced by the plaintiff like Electricity bills and Tax paid receipts and documents regarding availing the loan on the security of the suit properties showed that he was in possession. But, the trial Court over looked them;

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ii) After remand in RFA Nos.686/2017 and 759/2017, the plaintiff's vendor's suit was dismissed for non-prosecution and now they have filed Misc.No.25068/2020 for restoration of the suit. That matter is still pending. Therefore the proceedings in OS No.15923/2003 have not yet attained finality. The order of the trial Court is illegal and perverse.

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Per-contra, Sri H.A.Manjunath Prasanna, learned counsel for the defendant referring to all the aforesaid legal proceedings, the sale deed of defendant

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M.F.A.NO.2552/2021

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and his vendor, submits that the trial Court on appropriate analysis of the material placed before it has rejected the application. He further submits that such discretionary order cannot be interfered with when there is no perversity or illegality in the order.

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It is settled position of law that an order passed under Order XXXIX Rules 1 and 2 of CPC being a discretionary one cannot be interfered by the appellate Court unless it suffers the vice of arbitrariness, capriciousness and perversity.

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To succeed in his application for Temporary Injunction the plaintiff was required to establish the following aspects :

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Prima-facie case of his legal right and injury to

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such right and his lawful possession as on the date of the suit;

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That the balance of convenience lies in his favour;

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M.F.A.NO.2552/2021

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If Interim Injunction is not granted, he suffers irreparable injuries.

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Plaintiff claimed the possession based on his title deed which in-turn was based on the sale deed dated 01.09.2017 executed by the heirs of Ramaiah. They in-turn claimed to have derived title on the basis of the decree passed in their favour in O.S.No.15923/2003 and on FDP No.25001/2010.

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The material placed on record, prima-facie shows that much before filing of the said suit, Ramaiah had sold the suit property to V.D.John on 29.09.1988. The said V.D.John in-turn sold the property to the defendant under the registered sale deed on 20.01.1998. Both documents contain the recital that the purchasers are put in possession of the property.

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More than 5 years thereafter, his daughters

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filed OS No.15923/2003 claiming partition in that property. The vendor Ramaiah conveniently did not contest the suit. The purchasers were not the parties to

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M.F.A.NO.2552/2021

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the suit. Ultimately the suit was decreed and FDP was allowed. There is no dispute that the said FDP and preliminary decree were challenged before this court in RFA Nos.686/2017 and 759/2017 by one of the similar purchasers.

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This Court in RFA Nos.686/2017 and 759/2017 observing that the preliminary decree and FDP were obtained without impleading the purchaser as party, set aside the preliminary decree and final decree, remanded the matter to the trial Court. As admitted by the plaintiff’s counsel himself after remand O.S.NO. 15923/2003 is dismissed for non prosecution. Mere filing the petition under Order IX Rule 13 of CPC does not amount to revival of the proceedings in OS No. 15923/2003.

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Further the defendant filed O.S. No.25447/2019 against the plaintiff's vendors for permanent injunction and that came to be decreed on 28.07.2020. In the said suit the Court granted permanent injunction against the plaintiff's vendor from interfering with the peaceful possession of the

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M.F.A.NO.2552/2021

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defendant. The plaintiff cannot get better right than what his vendors have. They have not challenged the judgment in OS NO.25447/2019. Therefore, the said Judgment has attained finality.

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The other circumstance is that soon before filing of the present suit i.e., on 02.03.2020 the plaintiff filed another suit in O.S.No.25407/2020 against the defendant seeking very same relief of permanent injunction withdrew that on 19.03.2020.

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In the light of the solemn judicial pronouncement of this Court in RFA Nos.686/2017 and 759/2017, the trial court declined to attach any importance to the revenue records, electricity bills etc., and held that plaintiff has failed to prove his lawful possession as on the date of the suit thereby the primafacie case and rejected the application.

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In the light of the above discussion, it cannot be said that the impugned order suffers the vice of arbitrariness, perversity or capriciousness. The

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M.F.A.NO.2552/2021

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appeal deserves no merits. Therefore the appeal is

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dismissed with actual costs.

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Pending IA's are disposed of.

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Sd/JUDGE

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akc

Sri Padmaraju Subbaramaraju v. Mr Shaji Paul

Case brief

What is this about?

What did the court decide?

Sri Padmaraju Subbaramaraju v. Mr Shaji Paul

Case brief

What is this about?

What did the court decide?

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