Dismissed

Smt. Chotamma v. Sri. Vijaya Devarajeurs

Karnataka HC2 Sept 2022WP/17148/2018

Case brief

AI extract

What is this about?

The High Court dismissed this writ petition as the impugned order granting a temporary injunction to restrain interference with peaceful possession was upheld. The court noted that since title is disputed in a separate suit, the balance of convenience favors the holder of peaceful possession, and the injunction remains operative.

What did the court decide?

The writ petition was dismissed, and the interim injunction restraining the respondents from interfering with the petitioner's possession was confirmed.

Smt. Chotamma Vs Sri. Vijaya Devarajeurs — Specific Performance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 02^ND DAY OF SEPTEMBER, 2022

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BEFORE

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THE HON’BLE Mrs. JUSTICE K.S. HEMALEKHA

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WRIT PETITION No.17148/2018 (GM-CPC)

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BETWEEN:

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SMT. CHOTAMMA W/O. LATE THIMMEGOWDA, AGED ABOUT 75 YEARS, RESIDING AT DODDABELALU VILLAGE, DODDABELALU POST, RAVANDUR HOBLI, PERIYAPATNA TALUK – 571 107 MYSURU DISTRICT.

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SRI RAVIGOWDA S/O. LATE THIMMEGOWDA, AGED ABOUT 50 YEARS, RESIDING AT DODDABELALU VILLAGE, DODDABELALU POST, RAVANDUR HOBLI, PERIYAPATNA TALUK – 571 107 MYSURU DISTRICT.

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SRI NAGEGOWDA S/O. LATE THIMMEGOWDA, AGED ABOUT 46 YEARS, RESIDING AT DODDABELALU VILLAGE, DODDABELALU POST, RAVANDUR HOBLI, PERIYAPATNA TALUK – 571 107 MYSURU DISTRICT.

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SRI GOVINDEGOWDA S/O. LATE THIMMEGOWDA, AGED ABOUT 41 YEARS, RESIDING AT DODDABELALU VILLAGE,

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DODDABELALU POST, RAVANDUR HOBLI, PERIYAPATNA TALUK – 571 107 MYSURU DISTRICT. ... PETITIONERS

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(BY MR. N. SANDEEP, ADVOCATE FOR MR. P.M. SIDDAMALLAPPA, ADVOCATE)

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AND:

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SRI VIJAYA DEVARAJEURS S/O. LATE BALARAJEURS, AGED ABOUT 44 YEARS, RESIDING AT DODDABELALU VILLAGE, DODDABELALU POST, RAVANDUR HOBLI, PERIYAPATNA TALUK – 571 107. MYSURU DISTRICT. ... RESPONDENT

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(BY MRS. ANUSHA ASUNDI, ADVOCATE FOR MR. A. MADHUSUDHANA RAO, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SETTING ASIDE THE ORDER DATED 03.04.2018 PASSED IN M.A.NO.18/2017 BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC, PERIYAPATNA VIDE ANNEXURE-G.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 18/08/2022 AND COMING FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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O R D E R

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Defendants have preferred the present writ

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petition assailing the order dated 03/04/2018, in M.A.No.18/2017, on the file of the Senior Civil Judge

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& JMFC at Periyapatna, (hereinafter referred to as “the trial Court” for the sake of convenience), whereby, the Miscellaneous Application filed by plaintiff was allowed with costs, consequently I.A.No.1 filed by the plaintiff in O.S.No.225/2017 under order XXXIX Rules 1 and 2

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of the Code of Civil Procedure, 1908 (“CPC”) seeking to restrain the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property came to be allowed.

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The parties herein are referred to as per

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their ranking before the trial Court for the sake of convenience.

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The suit in O.S.No.225/2017 for a permanent injunction from interfering with the peaceful possession and enjoyment of the schedule property contending that the suit schedule property is the ancestral property of the plaintiff and the plaintiff

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has been allotted the suit schedule property Sy.No.196/3, measuring 01 acre 22 guntas under a registered partition deed dated 30/03/2013.

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Pursuant to the summons issued by the

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trial Court, the defendants appeared and filed their written statement denying the plaint averments and contended that the suit schedule property was purchased by the husband of defendant No.1 and father of defendant Nos.2 to 4, vide registered sale deed dated 21/07/1999. However, it is stated that the survey number was wrongly mentioned in the sale deed as Sy.Nos.188/3 and 186/2, measuring 0.36 and 0.34 guntas respectively instead of Sy.No.196/3 and that the boundaries mentioned in the sale deed refer to Sy.No.196/3 and the same as that of the plaint schedule property and not the Sy.Nos.188/3 and 186/2 and that the defendants have possession of Sy.No.196/3 though the sale deed mentions the

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wrong survey number. On coming to know the mistake in the sale deed, the defendants contended that they filed suit in O.S.No.314/2017 on the file of the Civil Judge & JMFC, Periyapatna, against the plaintiff, his mother and others seeking a relief of declaration to declare that the defendants are the absolute owners of the suit schedule property under the sale deed dated 21/07/1999, to issue a mandatory injunction to rectify the sale deed and permanent injunction restraining the plaintiff and his mother from interfering with the suit schedule property and for cancellation of the revenue entry standing in the name of the plaintiff and the same is pending consideration.

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Plaintiff filed I.A.No.1 in O.S.No.225/2017 under Order XXXIX Rules 1 and 2 of the CPC seeking a temporary injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property. The

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defendants filed a memo stating that the written statement filed by the defendants to be treated as the objections to I.A.No.1 and the trial Court on hearing the parties dismissed I.A.No.1 filed by the plaintiff under Order XXXIX Rules 1 and 2 of the CPC holding that the plaintiff’s possession is doubtful and the plaintiff has not made out a prima facie case and when the defendants have disputed the title, any document supporting possession cannot be considered as a proof of lawful possession and accordingly rejected the application I.A.No.1 holding that no hardship or prejudice would be caused to the plaintiff.

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Aggrieved by the order on I.A.No.1, the plaintiffs preferred M.A.No.18/201 before the Senior Civil Judge, Periyapatna. The First Appellate Court on re-appreciation of the material documents on record and on hearing the parties allowed I.A.No.1, restrained the defendants by an order of temporary

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injunction from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property till the disposal of the suit holding that the act of the defendants in filing a subsequent suit for declaration of their title in respect of the suit schedule property shows that right of the defendants is to be established and about possession of defendants, no document is forthcoming and thus, made out a balance of convenience in favour of the plaintiff for granting of temporary injunction and irreparable loss and injury would be caused to the plaintiff if an injunction is not granted and accordingly I.A.No.1 was disposed of.

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Aggrieved by the said order, the

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defendants have preferred this writ petition.

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Heard learned counsel for the parties to the lis and perused the material evidence on record.

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9. Learned counsel for the petitioner, Sri

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N.Sandeep for Sri P.M.Siddamallappa would contend that the order of the first appellate Court in allowing I.A.No.1 filed for temporary injunction is erroneous, misconceived and contrary to the material on record. Learned counsel for the petitioner would contend that the first appellate Court has failed to consider that the defendants have possession of the property right from the date of the sale deed dated 21/07/1999 and also contended that in the suit filed by them in O.S.No.314/2017 it was specifically contended that they are in possession of the suit schedule property and thus, the order of the first appellate Court in granting a temporary injunction in favour of the plaintiff would cause an untold hardship to the defendants.

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Per contra , Smt. Anusha Asundi appearing on behalf of Sri A. Madhusudhan Rao, learned counsel for respondents would justify the order passed by the first appellate Court and would contend that the first appellate Court on re-appreciation of the material on record has rightly concluded that the plaintiff is in peaceful possession and enjoyment of the suit schedule property based on the registered partition deed, wherein suit land was allotted to the share of the plaintiff in the year 2013. It is specifically contended that even before the suit, the plaintiff’s mother and his ancestors had the suit schedule property and would further contend that the defendants have not produced a single piece of evidence to show that they were in possession of the suit schedule property at any point of time and thus sought for dismissal of the writ petition.

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This Court has considered the arguments advanced by learned counsel for the parties and carefully perused the material on record including the orders passed by the trial Court and the first appellate Court. The undisputed fact is that the defendants have filed O.S.No.314/2017 for a declaration that they are the absolute owners of the suit schedule property under the sale deed dated 21/07/1999 as against the plaintiff, his mother and others and a direction to rectify the sale deed and for permanent injunction restraining the plaintiff and his mother from interfering with the suit schedule property and also for cancelling the revenue entries standing in the name of the plaintiff. The defendants not only disputed the very possession of the plaintiff over the suit property but also disputed the ownership of Leelavathammanni and the partition deed and contended that the defendants are in possession of the suit schedule

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property right from the date of the sale deed dated 21/07/1999. It is relevant to note that no material, other than the sale deed dated 21/07/1999 has been produced and even in the sale deed, as per the contention of the defendants themselves, the survey number is wrongly mentioned as No.188/3 and Sy.No.186/2 instead of Sy.No.196/3.

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On the other hand, the plaintiff, to

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substantiate the contention, has produced the RTC which has been standing in the name of the brother of the plaintiff Somraje Urs in respect of the suit schedule property and as per the M.R.No.25/1991-92, the name of the mother of the plaintiff was entered in the revenue records. It also reveals that the registered partition dated 30/03/2013 was entered into between the family members and the suit schedule fell to the share of the plaintiff and accordingly, the name of the plaintiff appears in the

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revenue records. Though the mutation entry has been disputed by the learned counsel for the defendant seriously, whether the registered partition deed dated 30/03/2013 is valid or whether the sale deed executed in favour of the husband and father of defendant No.1 vide registered sale deed dated 21/07/1999 or whether the boundaries correspond to the very same survey number and the title of the vendors of the defendant over the suit schedule property is the matter to be adjudicated in a trial.

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It is a settled proposition of law that three aspects need to be considered while granting a temporary injunction namely, prima facie case, the balance of convenience and irreparable loss and hardship. The plaintiff, to prove the prima facie case, has contended that the suit property is the ancestral property of the plaintiff and accordingly the suit property has been allotted to his share and mutation

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entry to that effect has been made in favour of the plaintiff. To show the balance of convenience, it is relevant to note that the property bearing Sy.No.196/3 is not disputed to be the property belongs to the family of the plaintiff, but what is disputed is that the uncle of the plaintiff has sold the property in favour of the defendants. To prove whether there was a valid sale transaction in favour of the defendants or not, that is the subject matter of the suit in O.S.No.314/2017 filed by the defendants themselves.

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Insofar as the irreparable loss and hardship are concerned, the plaintiff has made out a case before the trial Court that the suit is for a bare injunction and the revenue entries, prima facie, establish that the plaintiff has possession of the suit schedule property and in the event, if the temporary injunction is not granted, then irreparable loss and

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hardship would be caused to the plaintiff. In the circumstances, the Apex Court in the case of Shiv Kumar Chadha vs. Municipal Corporation of Delhi

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and others [(1993)3 SCC 161] at paragraph

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Nos.18 and 30 has held as under:

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“18. The Constitution Bench in Dhulabhai v. State of M.P. [AIR 1969 SC 78 : (1968) 3 SCR 662 : 22 STC 416] said:

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“Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.

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Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the

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said right and liability shall be determined by the tribunals so constituted and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.”

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xxx xxx xxx

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TEMPORARY INJUNCTION

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30. It need not be said that primary object of filing a suit challenging the validity of the order of demolition is to restrain such demolition with the intervention of the court. In such a suit the plaintiff is more interested in getting an order of interim injunction. It has been pointed out repeatedly that a party is not entitled to an order of injunction as a matter of right or course. Grant of injunction is within the discretion of the court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The court grants such relief

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according to the legal principles — ex debito justitiae. Before any such order is passed the court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him.”

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(Emphasis supplied)

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It is also relevant to note that this Court,

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vide order dated 11/09/2018, had only issued emergent notice to the respondents which would suffice that from 2018 down to date, the temporary injunction granted in M.A.No.18/2017 was operating against the petitioners/defendants herein. Thus the balance of convenience stands in favour of the plaintiff and accordingly, this Court is of the considered view that the order passed by the first appellate Court in M.A.No.18/2017 does not call for any interference. It is always open for the petitioners/defendants to seek appropriate relief in the suit in O.S.No.314/2017 filed

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by him in accordance with law. In the result, this

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Court pass the following:

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ORDER

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(i) Writ petition is dismissed .

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(ii) The impugned order dated 03/04/2018 in MA.No.18/2017 on the file of Senior Civil Judge and JMFC, Periyapatna, is hereby confirmed restraining the defendants/ respondents by an order of temporary injunction from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property till the disposal of the suit. However, liberty is reserved for the petitioner to seek appropriate relief in O.S.No.314/2017 in accordance with law, if so advised.

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(iii) It is needless to observe that any opinion expressed in connection with the passing of the order on I.A.No.1 has no bearing and shall not

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affect any of the parties at the stage of the final adjudication and findings are limited to the orders on this I.A. only.

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(iv) The trial Court is directed to dispose of the suit as expeditiously as possible, but not later than six months from the date of receipt of a copy of this order.

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No order as to costs.

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SD/JUDGE

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Smt. Chotamma v. Sri. Vijaya Devarajeurs

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Smt. Chotamma v. Sri. Vijaya Devarajeurs

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