Dismissed

Sri M Somashekar v. Smt Manju Bai

Karnataka HC12 Nov 2021MFA/4738/2021

Case brief

AI extract

What is this about?

Appeals against the dismissal of applications for temporary injunction in a property suit were filed. The High Court held that while discretionary orders are generally not interfered with, this case lacked perversity or arbitrariness as the trial court correctly found no prima facie case of possession given the age of title documents and registration history.

What did the court decide?

The appeals were not admitted and were dismissed; pending interim applications were disposed of.

Sri M Somashekar Vs Smt Manju Bai — Partition | Karnataka HC (2021)

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M.F.A.NO.4738/2021 C/W M.F.A.NO.4739/2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF NOVEMBER 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.4738/2021(CPC) C/W

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MISCELLANEOUS FIRST APPEAL NO.4739/2021 (CPC)

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BETWEEN:

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SRI. M.SOMASHEKAR, S/O LATE PATEL MARAPPA, AGED 56 YEARS, R/AT #201, KARTHIKANILAYA, 1^ST MAIN, 2^ND CROSS, VBHS LAYOUT, R.R.NAGAR, BENGALURU – 560 098. … APPELLANT (COMMON)

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(BY SRI M.B.CHANDRACHOODA, ADVOCATE)

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AND:

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SMT. MANJU BAI, W/O D.SAMPATHRAJ JAIN, AGED 55 YEARS,

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SRI. D.SAMPATHRAJ JAIN, S/O DEVRAJ JAIN, AGED 58 YEARS,

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RESPONDENTS 1 & 2 ARE RESIDING AT NO.74, ‘SAGAR’, OLD POST OFFICE ROAD, 2^ND BLOCK, THYAGARAJANAGAR, BENGALURU – 560 028. … RESPONDENTS (COMMON)

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(BY SRI.C.R.SUBRAMANYA, ADVOCATE)

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M.F.A.NO.4738/2021 C/W M.F.A.NO.4739/2021

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THESE APPEALS ARE FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 14.12.2020 PASSED ON I.A.NOS.1 AND 2 IN O.S.NO.1257/2019 ON THE FILE OF THE XXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, (CCH-30), DISMISSING IA NOS.1 AND 2 FILED U/O 39 RULE 1 AND 2 OF CPC.

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THESE MFAs COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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These appeals coming on for hearing on I.A.Nos.2 and 3/2021, with the consent of both side, the matters are taken up for hearing on admission.

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Aggrieved by the rejection of his application

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for temporary injunction by the trial Court, plaintiff in O.S.No.1257/2019 has preferred these appeals.

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For the purpose of convenience, parties are referred as their ranks before the trial Court.

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Plaintiff filed O.S.No.1257/2019 against the defendants for permanent injunction to restrain them from interfering with his peaceful possession and enjoyment of the suit schedule property or from dispossessing him from the suit schedule property.

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M.F.A.NO.4738/2021 C/W M.F.A.NO.4739/2021

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The subject matter of the suit is site No.6 carved out of Sy.No.87. BBMP No.243/244/6 of Chikkallasandra Village, Uttharahalli Hobli, Bengaluru South Taluk measuring East-West 30 ft. and NorthSouth 70 ft.

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Some of the admitted facts of the case are

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as follows:

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Site No.6 was carved out of Sy.No.87. The occupancy right of the land bearing Sy.No.87 was granted to plaintiff’s father late Patel Marappa on 13.03.1980. Plaintiff’s father died on 22.03.2009.

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Defendants’ claim that late Patel Marappa executed the agreement of sale dated 01.11.1986 in favour of defendant No.2 and put him in possession of the suit schedule property. They further claim that since there was some legal bar to execute the sale deed, defendant No.2 was not in a position to get the sale deed executed, therefore, Patel Marappa executed irrevocable General Power of Attorney in favour of defendant No.2. According to the defendants, plaintiff

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M.F.A.NO.4738/2021 C/W M.F.A.NO.4739/2021

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has subscribed his signatures in the sale deed and General Power of Attorney as a witness. Defendant No.2 has executed a registered gift deed dated 18.09.2018 in favour of his wife, defendant No.1.

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Plaintiff claims that the said agreement of sale and General Power of Attorney are concocted one, after death of his father he continued in the possession of the property. Alleging interference, he filed the suit. In the suit, he filed I.A.Nos.1 and 2 for temporary injunction against the defendants against interference in his peaceful possession and alienation of the property. The trial Court by the impugned order rejected both the applications on the ground that plaintiff has failed to make out prima facie case.

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Aggrieved by that order, the above appeals

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are filed.

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Sri. M.B.Chandrachood, learned Counsel for the plaintiff seeks to assail the impugned order on the ground that the documents relied on by the defendants

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M.F.A.NO.4738/2021 C/W M.F.A.NO.4739/2021

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were not registered one and they were concocted. He further submits that there was no conveyance by the plaintiff or his father in favour of defendant No.2, therefore, further conveyance by him in favour of defendant No.1 is illegal. He further submits that after the death of the father of the plaintiff, Power of Attorney automatically ceased, the gift deed executed subsequent to that has no legal sanctity. Therefore, he submits that impugned orders are perverse and illegal.

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Per contra, Sri. C.R.Subramanya, learned counsel for defendants/respondents submits that sale agreement and General Power of Attorney were executed as long back as in the year 1986. Based on that, defendants paid tax to the local authority and secured electricity connection. He further submits that based on the gift deed, the khatha was changed in the name of defendant No.1. He submits that as there was no material to show the possession of the plaintiff and no declaration was sought, the suit itself was not maintainable.

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M.F.A.NO.4738/2021 C/W M.F.A.NO.4739/2021

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These being the appeals against the order of rejection of injunction applications, this Court cannot interfere in such discretionary orders unless it is shown that the orders suffer perversity, capriciousness or arbitrariness.

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The basic principles in considering the applications for temporary injunction are that plaintiff has to satisfy that he has a prima facie case, balance of convenience lies in his favour and if injunction is not granted, irreparable injury will be caused to him.

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Prima facie case means prima facie right of the applicant and injury to such right and that the suit is not vexatious. The plaintiff did not dispute the existence of the agreement of sale dated 01.11.1986 and General Power of Attorney dated 20.11.1986, but he claimed that those documents were concocted.

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Under Section 85 of Indian Evidence Act, there is presumption regarding execution of the power of attorney. Neither plaintiff’s father questioned those

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M.F.A.NO.4738/2021 C/W M.F.A.NO.4739/2021

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documents till his death in the year 2009 nor the plaintiff questioned that till he filing the suit in the year 2019 i.e., for about 33 years. Those documents were 30 years old documents.

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The allegations in the plaint with regard to

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the genuineness of the documents are very bald. It is only said that the documents are concocted one. There are no specific pleadings of fraud or forgery. An attempt was made to state that when those documents were executed, the plaintiff was minor. There is no such allegation in the plaint. Apart from that in his suit in the year 2019, plaintiff has shown his age as 54 years. Therefore, in the year 1986 he must be 21 years old. Therefore, the contention regarding his minority is unacceptable.

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The trial Court took into consideration the aforesaid aspects as well as the fact that from the year 1988-89 the khatha stood in the name of defendant No.1 and she has produced tax paid receipts and records to show that electricity connection was given in

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M.F.A.NO.4738/2021 C/W M.F.A.NO.4739/2021

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her name. Therefore, the trial Court held that prima facie case of possession of the plaintiff or his right in the property were not established.

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The trial Court on sound appreciation of the material produced before it and pleadings of the parties opined that plaintiff has no prim facie case. This Court does not find any perversity or arbitrariness or capriciousness in the said order. The appeals are not fit for admission and dismissed accordingly.

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The trial Court is requested to dispose of the suit expeditiously uninfluenced by any of the observations made during course of this order.

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In view of dismissal of the appeals, pending IAs stood disposed of.

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Sd/JUDGE

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pgg

Sri M Somashekar v. Smt Manju Bai

Case brief

What is this about?

What did the court decide?

Sri M Somashekar v. Smt Manju Bai

Case brief

What is this about?

What did the court decide?

What the court decided

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