Partly allowed

Chethan Gowda L S v. Gangadhara Patel H

Karnataka HC15 Oct 2024MFA/2594/2024

Case brief

AI extract

What is this about?

High Court allowed miscellaneous first appeal partly against lower court's interim orders in a civil suit for permanent injunction. Court modified orders to maintain status quo for suit property, noting disputes over identity rather than title, and directed timely trial disposal.

What did the court decide?

Impugned interim orders modified; status quo directed for suit property until trial; trial to conclude within one year.

Chethan Gowda L S Vs Gangadhara Patel H — Property and Title | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF OCTOBER, 2024

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BEFORE

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THE HON’BLE MR. JUSTICE RAVI V. HOSMANI

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MISCELLANEOUS FIRST APPEAL NO. 2594 OF 2024 (GM-CPC)

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BETWEEN:

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1 . CHETHAN GOWDA L.S., S/O L.R. SHIVARAME GOWDA, AGED ABOUT 42 YEARS,

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2 . SUDHA SHIVARAME GOWDA, W/O L.R. SHIVARAME GOWDA, AGED ABOUT 60 YEARS

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BOTH ARE R/A NO.42, SUDHA MANSION, 1^ST CROSS, 7^TH MAIN, BANAGIRI HILL, BSK II STAGE, BENGALURU-560 085.

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…APPELLANTS

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[BY SRI K.N.PHANINDRA, SR. COUNSEL SRI SAMMITH S., ADVOCATE (PH)]

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AND:

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1 . GANGADHARA PATEL H., S/O LATE HONNAGANGAPPA P.S., AGED ABOUT 45 YEARS, R/A NO.53 AND 55,

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2^ND FLOOR, PAPAREDDYPALYA, MUNIYAPPA LAYOUT, NAGARABHAVI 2^ND STAGE, BENGALURU-560 072.

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2 . RAJASHEKARA M.S., S/O LATE SIDDALINGAPPA, AGED ABOUT 41 YEARS,

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R/A NO.47/19, 11^TH CROSS, MUNIPAPAIAH LAYOUT, NAGARABHAVI II STAGE, BENGALURU-560 072.

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…RESPONDENTS

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[BY SRI JAYAKUMAR S. PATIL, SR. COUNSEL FOR SRI SIDDESHWARA PRASAD S. KABBUR, ADV. FOR R1 & R2 (PH)]

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THIS MISCELLANEOUS FIRST APPEAL FILED UNDER ORDER 43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 13.03.2024 PASSED ON I.A. NO. 1 AND 2 IN O.S.NO.2092/2023 ON THE FILE OF THE XXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH NO. 23), ALLOWING THE I.A. NO.1 FILED UNDER ORDER XXXIX RULES 1 AND 2 OF CPC AND REJECTING THE I.A.NO.II FILED UNDER ORDER XXXIX RULE 4 OF CPC.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 11.07.2024, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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JUDGMENT

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Challenging order dated 13.03.2024 passed by XXV Additional City Civil and Sessions Judge, Bengaluru, (CCH-23), in O.S.no.2092/2023 allowing I.A.no.1 filed under Order XXXIX Rules 1 and 2 of CPC and rejecting I.A.no.2 filed under Order XXXIX Rule 4 of CPC, this appeal is filed by defendants. For sake of convenience, parties herein shall be referred as per their ranks before trial Court.

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Sri K.N. Phanindra, learned Senior Counsel appearing for Sri Sammith S., advocate for appellants submitted, in suit filed

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for permanent injunction restraining defendants etc. from interfering with their peaceful possession of suit property, plaintiffs had filed I.A.no.1 for temporary injunction. It was submitted, on 28.03.2023, trial Court had granted ex-parte ad-interim temporary injunction restraining defendants from interfering with plaintiffs’ possession of suit property. It was submitted, western portion of property bearing BBMP khata no.102/100/42/64 formed in Sy.no.42/64 vide conversion Order no.ALN/SR(N)/185/1988-89 situated at Mallathahalli Village, Yeshvantpur Hobli, Bangalore North Taluk, presently within BBMP limits, R.R.Nagar Sub-Division, Jnanabharathi Ward measuring East to West - feet

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and North to South - feet totally measuring 1698.75 sq.ft., bounded on East by – Remaining property of vendor; West by – Property of Smt.Revamma; North by – Road and South by – Gavipuram House Building Co-operative Society Layout was ‘ suit property ’.

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It was submitted, upon appearance, defendants filed written statement along with I.A.no.2 for vacating interim injunction on several substantial grounds. When it was not taken up

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for consideration, they filed W.P.no.11163/2023 challenging order dated 28.03.2023. This Court on 02.06.2023, granted interim order directing parties to maintain status-quo in respect of suit property. And on 12.06.2023, disposed of writ petition directing trial Court to dispose of I.A.s no.1 and 2 (before 15.07.2023) and continuing order of status quo till then. Thereafter, impugned order dated 13.03.2024 was passed allowing I.A.no.1 and rejecting I.A.no.2. Aggrieved thereby, this appeal was filed.

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It was submitted, impugned order was contrary to facts and circumstances of case and material on record. It was submitted, main objection was about serious cloud over title of plaintiffs over suit property and maintainability of suit for bare injunction. It was further submitted, plaintiffs failed to establish prima facie case, irreparable injury or balance of convenience in their favour. Hence, impugned order was contrary to law laid down by Hon'ble Supreme Court in case of Ananthula Sudhakar v.

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P.Buchi Reddy , reported in (2008) 4 SCC 594, held as follows:

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“Re: Question (i)

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13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a

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consequential relief, are well settled. We may refer to them briefly.

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13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

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13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

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13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.

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16. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs.”

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It was submitted, plaintiffs’ claim over suit property was based on khata no.102/100/42/64 and photographs, which was contested by defendants on ground that photographs pertain to site no.38 bearing khata no.94/92/38/42/64 purchased by defendants under registered sale deed dated 18.01.2022 executed by Smt.BS Mala. It was further submitted, to prove possession, plaintiffs produced BBMP khata at Annexure-R4, tax paid receipts at Annexure-R6, loan sanction letter Annexure-R35, building licence at Annexure-R36 and building plan at Annexure-R43, which were not documents of title or possession.

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Elaborating contention about title being in dispute, it was submitted, plaintiffs claimed to have acquired title from Smt.BS Mala, who in turn had got it from Smt.Revamma. It was submitted, there was no dispute that land bearing Sy.no.42/64 of Mallathahalli village measuring 2 Acres, originally belonged to Sri Kenchappa. And after his death, his legal heirs partitioned it on 17.11.2023 as follows:

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(a) Smt.Revamma (wife) - 13 guntas;

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(b) Smt.Venkatalakshmamma – widow of predeceased son - 13 guntas;

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(d) Smt.Jayamma (daughter) - 13 guntas;

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(e) Smt.Radhamma (daughter) - 13 guntas and

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(f) Sri K. Nagaraj (son) - 15 guntas.

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Whereas, defendants were sourcing their title to Smt.CS Shilpa Gowda, who got it from Sri NR Nagaraju, who had purchased 1 Acre 27 guntas from children of late Kenchappa. It was submitted, shares of Smt.Revamma and that of other legal heirs of Kenchappa were adjacent to each other, with Smt.Revamma's property situated to south-western portion of 2 Acres.

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It was submitted, plaintiffs’ vendor allegedly purchased property in two portions of 3965 sq.ft. each (totally 7930 sq.ft.) from out of share of Smt.Revamma under two separate sale deeds without khata numbers, as follows:

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Sale deed	Number 4852	Number 4853
Portion	Western side	Eastern side
East by:	Remaining extent of eastern portion of same survey number	Property belonging to N.R Nagaraju
West by:	Remaining portion of Revamma's property	Remaining extent of Western portion of same survey number
North by:	Road and remaining portion of Revamma's property	Road and remaining portion of Revamma's property
South by:	Gavipuram House building Co-operative society layout	Gavipuram House building Co-operative society layout.

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It was submitted, above sale deeds referred to property of defendants vendor Sri NR Nagaraju. Further, combined reading of boundary description would reveal that property of Smt.BS Mala was sandwiched between remaining property of Smt.Revamma and property of Sri NR Nagaraju. It was submitted, as per Annexure-R9, khata number of entire extent of 7930 sq.ft. of property of Smt.BS Mala was 102/100/42/64. It was submitted, strangely even khata number of suit property measuring 1698.75 sq.ft. claimed by plaintiffs was same as per Annexure-R4, which was illegal and thereby raised doubts. Even other documents such as tax paid receipts, property register extract, encumbrance certificate and building licence etc. bear same number, demonstrating fictitious nature of suit property.

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It was further submitted, boundary description of title deed of plaintiffs showed suit property was sandwiched between remaining property of Smt.Revamma and Smt.BS Mala, but photographs produced by plaintiffs did not show any vacant property on either side of suit property. It was also submitted title deed of vendor of defendants' vendor was dated 17.11.2003, that

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of defendants' vendor was 22.03.2004 and of defendants on 06.07.2004, which were earlier to sale deed of plaintiffs dated 18.01.2022 and that of plaintiffs' vendor which was on 30.04.2004. Hence, there were rival claims of title over suit property under respective registered sale deeds thereby indicating serious dispute of title. Such being case without challenging sale deeds of defendants or their vendors or seeking for declaration of title, plaintiffs could not maintain suit for bare injunction. And when maintainability of suit was in issue, grant of injunction would be wholly unsustainable.

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It was submitted, when ground water survey reportAnnexure-R32 did not refer to suit property, learned trial Judge relied on same while passing impugned order. Likewise, reliance on loan allegedly sanctioned by Janata Co-operative Society to conclude that same would not have been sanctioned without confirming title and possession of plaintiffs would be without any legal basis and contrary to law. It was submitted, same in any case, would be ignoring fact that even defendants had obtained loan by mortgaging property purchased from Punjab National Bank as per

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Annexure-S. Thus, conclusion of trial Court was contrary to material on record and as such perverse.

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It was submitted reasoning by trial Court appeared to be based on incorrect assumption that title follows possession contrary to legal principle that ‘possession follows title’. It was further submitted, police compliant filed by defendants was on 12.05.2022, more than a year prior to first complaint allegedly filed by plaintiffs on 16.05.2023 would also be a ‘tell-tale’ about falsity of plaintiff’s case. It was further contended, plaintiffs’ case was that, family members of late Kenchappa had executed General Power of Attorney (‘ GPA ’ for short) in favour of one Sri K. Sriramaiah on 28.07.1994 as per Annexure-R22. Since, GPA was in respect of entire 2 Acres, consequently, cloud of title of plaintiffs was even bigger, disentitling plaintiffs for order of temporary injunction.

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It was also submitted, title of plaintiffs’ vendor Smt.BS Mala was perfected on account of decree in OS no.15962/2004 and RFA 184/2016 would be without basis as neither defendants nor their predecessors in title were party to it.

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On other hand, it was submitted, description of property purchased by defendants matches perfectly with boundaries in layout plan etc., and flow of title from their vendor Smt.CS Shilpa Gowda and vendor's vendor Sri NR Nagaraju was smooth and consistent. Their claims were duly corroborated by copies of registered sale deeds, deeds of mortgage by deposit of title, khata certificate initially issued by Rajarajeshwarinagar TMC and later by BBMP as per Annexure-U, tax paid receipts at Annexure-V and V1 respectively.

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It was submitted, on noticing plaintiffs were attempting to put up construction after obtaining ex-parte interim injunction, this Court in W.P.no.11163/2023 had ordered both parties to maintain status quo in respect of suit property in all regards until disposal of IAs no.1 and 2. It was submitted, as trial Court disposed off IAs only on 13.03.2024, order of status quo had prevailed for more than a year and therefore, it would be equitable to continue to same until disposal of suit, by relying on ratio laid down in case of

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Wander Ltd. v. Antox India (P) Ltd. reported in 1990 (Supp) SCC 727, held as follows:

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“ 9. Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated

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“...is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the ‘balance of convenience’ lies.”

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The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie case. The court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales , as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted .”

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It was submitted, in event of impugned order being continued, defendants would suffer irreparable loss and injury, which could not be compensated in terms of money, as plaintiffs would put up permanent construction over suit property and change

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entire nature of suit property itself. On above grounds, it was prayed for allowing appeal.

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On other hand, Sri Jayakumar S. Patil, learned Senior Counsel appearing for Sri Siddeshwara Prasad S. Kabbur, advocate for plaintiffs submitted, land bearing Sy.no.42/64 measuring 2 Acres in Mallathahalli Village, Yeshvantpur Hobli, Bengaluru North Taluk was granted in favour of one Hanumakka w/o Bettaiah, who sold it to one Sri Sooraiah s/o Late Kare Kenchappa. After death of Sooraiah, his son Kenchappa inherited it. It was got converted to non-agriculture residential purpose by said Kenchappa. After death of Kenchappa, names of his wife Smt.Revamma and sons namely Veerabhadra and Nagaraj were mutated in revenue records.

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Thereafter, Smt.Revamma and her sons executed registered GPA in favour of one K. Sriramaiah s/o Krishnappa to develop entire 2 Acres of land, form layout and to sold sites. After obtaining conversion endorsement certificate, GPA holder got layout approved by Mallathahalli Panchayath and laid sites no.52 to 101. It was submitted, sites no.1 to 51 were perhaps laid in adjacent land bearing Sy.no.42/63. Thereafter, Smt.Revamma and her sons sold

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sites to different purchasers such as site no.96-B measuring 1665 sq.ft. to K. Jagaroop Singh s/o Kuber Singh; site no.98 measuring 1910 sq.ft. to Sri KT Sheshagiri s/o K. Thimmegowda; site no.96-A measuring 1755 sq.ft. to Sri Kadur Srinivasa Murthy Gopala Krishna and site no.97 measuring 2600 sq.ft. to Sri S. Sridhar s/o VR Srinivasan. It was submitted, site no.96-A was later purchased by Smt.Thirumale Srinivasachar Padmini from Kaduru Srinivasamurthy Gopalkrishna.

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It was submitted, much after these transactions, Sri NR Nagaraju claimed to have got sale deed executed from (1) Nagaraj, (2) Venkatalakshmamma, (3) Veerabhadrappa, (4) Lakshmamma, (5) Jayamma and (6) Radhamma, children of Smt.Revamma, in respect of 1 Acre 27 guntas out of total 2 Acres of land in Sy.no.42/64. Said sale deed was presented for registration on same day at 2.30 p.m., partition deed between Smt.Revamma and her children was executed and registered at 4.30 p.m. In said partition, Smt.Revamma was allotted 13 guntas of converted land, towards her share. From out of said share, Smt.BS Mala-plaintiffs’ vendor purchased 7930 sq.ft. i.e. 3965 sq.ft. + 3965 sq.ft. from

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Smt.Revamma on 30.04.2004. She got khata issued in her name and paid taxes.

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Thereafter, when Sri KT Sheshagiri interfered with her possession, Smt.BS Mala filed OS.no.15962/2004 against Sri KT Sheshagiri for perpetual injunction. On 25.11.2015, said suit was decreed. Though, challenged in RFA no.184/2016 before this Court, a compromise was entered into on 21.02.2019, wherein Sri KT Sheshagiri affirmed right, title, interest and possession of Smt.BS Mala. It was submitted, there was similar compromise in respect of site no.96-B with Sri K.Jagaroop Sigh and site no.96-A with Smt.Thirumale Srinivasachar Padmini in O.S.no.2436/2019 before XVII Addl. City Civil Court (CCH-16), Bengaluru, on 25.04.2019, giving up their right, title and interest in favour of Smt.BS Mala. Even, S. Sridhar s/o VR Srinivasan, purchaser of site no.97, measuring 2600 sq.ft. entered into compromise with Smt.BS Mala in O.S.No.5192/2019 on 24.11.2019 affirming her right, title and interest of Smt.BS Mala.

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Thus, Smt.BS Mala had resolved all disputes with previous purchasers in respect of entire extent of 7930 sq.ft. It was

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submitted, Valuation Report of plaintiffs’ Banker showed that on 29.12.2021, authorized Engineer of Bank visited suit property, inspected it and took photographs with plaintiffs, which showed compound-wall/fence around site. Apart from same, plaintiffs had got issued public notice about intended purchase. Thereafter, by borrowing loan from Janata Seva Co-operative Bank Ltd., Vijayanagar Branch, Bengaluru, plaintiffs had jointly purchased suit property, took possession and sunk bore well in it. Thereafter, they got joint khata and paid taxes. It was submitted during January, 2023, 10.02.2023 and 18.03.2023 defendants tried to interfere with plaintiffs’ possession of suit property. Therefore, O.S.no.2092/2023 was filed against them for permanent injunction.

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It was submitted, photographs taken prior to filing of suit and produced by plaintiffs had date and time mentioned therein clearly show that there was no signboard in or adjacent to suit property, thereby falsifying claim of defendants that they had put signboard after alleged interference by plaintiffs on 08.05.2022.

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It was submitted, initially trial Court granted ex-parte interim injunction on 28.03.2023. Even thereafter, defendants

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obstructed construction by plaintiffs. Therefore, police complaint was filed. Thereafter, defendant no.1 also filed police complaint against plaintiffs. It was submitted, except claiming to have mortgaged site, defendants neither stated nor produced material to demonstrate exercise of ownership rights over site purchased by them. Only after filing of suit by plaintiffs, defendants produced false layout plan and photographs and meddling with possession and construction by plaintiffs in suit property. It was submitted, when they continued obstruction, plaintiffs filed another police complaint. In their statement before police, defendants stated that possession of property mortgaged by them was taken over by Punjab National Bank.

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It was submitted, while defendants filed their writtenstatement, memo and I.A.no.2 to vacate ex-parte interim injunction granted on 28.03.2023 in OS no.2092/2023. They also filed WP no.11163/2023 obtained an ex-parte order of status quo . Plaintiffs filed detailed objection to said IA no.2 with additional documents to show prima-facie case. Thereafter, WP no.11163/2023 was

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disposed of directing trial Court to consider and pass orders on I.A.s no.1 and 2.

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It was submitted, according to defendants, Sri NR Nagaraju executed sale deed in favour of Smt.CS Shilpa Gowda in respect of site no.38, who sold it to defendants, and who mortgaged it State Bank of India and later to Punjab National Bank. It was submitted, mortgage deed shows that it was in respect of total 10 sites i.e. sites no.26, 27, 30, 33, 35, 37/2, 38, 39 & 40 as per Annexure-P - layout plan, but said plan does not include site no.30. Therefore, defendants are either withholding material before Court or produced false layout plan.

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It was submitted, allegation in complaint filed by defendants was that some miscreants / anti-social elements tried to encroach upon sites no.38, 39, 40 and 42 and tried to put up compound wall, even though compound wall put up by plaintiffs was in existence much earlier. Therefore, police complaint was on false and imaginary basis.

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Thereafter, defendant no.1 obtained NCR endorsement from police and falsely claiming that they had put up compound wall and signboard. It was submitted, photographs at Annexure-Z series were created subsequent to 12.05.2023 and just prior to filing of written statement in suit for purpose of showing fake possession and harass plaintiffs. It was submitted, learned trial Judge had heard and disposed of both IA no.1 and 2 on merits by assigning proper reasons and same did not call for interference.

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Heard learned counsel and perused impugned order and available material.

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From above, it is seen defendants are challenging impugned order mainly on ground of untenability of conclusions as well as on ground of failure to consider all available material. Therefore, point that arises for consideration is:

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“Whether order passed by trial Court on I.As.no.1 and 2 suffers from perversity/untenability and calls for interference?”

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This is an appeal against discretionary order passed by trial Court under Order XXXIX Rules 1 and 2 of CPC on I.A.no.1. As per decision of Hon'ble Supreme Court in Mohd. Mehtab Ibrahim

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Khan v. Khushnuma Ibrahim Khan , reported in 2013 (9) SCC

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221 , scope for interference in appeal against discretionary order would be limited, unless it were untenable or suffered from perversity etc. It is clarified even if view taken by trial Court on available material were to be one of possible views, there could be no interference.

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In light of above legal position, perusal of impugned order, reveals after taking note of rival pleadings, material produced and contentions urged, trial Court framed proper points for consideration and passed order by assigning reasons. Main reason assigned was, according to defendants suit property was fictitious and no such property existed, but documents produced by plaintiffs, namely, order of conversion of land use, sale deeds, khata certificates and tax paid receipts as well as sanction of loan by Janata Seva Co-operative Bank and Ground Water Level Report issued after visiting suit property substantiated prima-facie case in favour of plaintiffs. It further observes photographs produced by plaintiffs showed construction of compound wall and beginning of construction by raising columns.

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It observed, even plaintiffs denied existence of

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defendants’ property and to resolve which trial was required, it held, material produced by plaintiffs established prima-facie case and possession, which required to be protected during pendency of suit. On said observations, it answered points framed in favour of plaintiffs and passed impugned order.

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Only reference to case of defendants is that they claimed to have purchased site no.38 from Smt.Shilpa Gowda under registered sale deed dated 06.07.2004, who had purchased it from Sri NR Nagaraju under registered sale deed dated 22.03.2004. It also notes that said Sri NR Nagaraju had also purchased sites no.39, 40, 42 and 43 and that after purchase, khata was issued to Smt.Shilpa Gowda, which according to trial Court did not establish prima-facie case on behalf of defendants to vacate ex-parte order of temporary injunction.

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As per plaint, Smt.Revamma wife of late Kenchappa – original owner of land bearing Sy.no.42/64, got 13 guntas out of it under registered partition deed dated 17.11.2003. Said land was

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converted for non-agricultural purposes prior to partition. Out of same, she sold 7930 sq.ft., of land in favour of Smt.BS Mala under two registered sale deeds. Thereafter plaintiffs purchased suit property, which was western portion of property of Smt.BS Mala, under registered sale deed dated 18.01.2022.

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In plaint, there is also mention of Sri KT Sheshagiri filing OS.no.15962/2004 by claiming to be owner of site no.98 formed in converted land. Said suit on contest came to be dismissed with observation that Smt.BS Mala was in possession and enjoyment of property. Though questioned in RFA.no.184/2016, said decree came to be affirmed with a compromise whereunder Sri KT Sheshagiri admitted possession and enjoyment of Smt.BS Mala and given up his claim. Plaint also refers to public notice dated 09.08.2021 issued prior to purchase, sinking of bore-well, construction of compound wall and after sanction of loan from Janata Seva Co-operative Bank Ltd., intention to begin construction of residential building in terms of sanctioned building plan etc. There is no specific assertion about construction having begun and

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progressed upto pillars either in plaint or in affidavit filed in support of I.A.no.1.

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On other hand, specific case of defendants in written statement and I.A.no.2 is that on death of original owner Kenchappa, there was partition among his legal heirs, wherein four daughters got 13 guntas each, while son Sri Nagaraj got 15 guntas. All children together sold property to one Sri NR Nagaraju under registered sale deed dated 17.11.2003, who thereafter formed revenue layout in 1 Acre 27 guntas along with adjacent properties without disturbing share of Smt.Revamma and sold site no.38 to Smt.CS Shilpa Gowda on 22.03.2004. From her, defendants purchased site no.38. They also claimed to have purchased adjacent sites no.39, 40, 42 and 43 and got their names entered in revenue records and also obtained khata. They also stated that along with their father - Sri LR Shivarame Gowda and M/s Royal Concorde Educational Trust obtained credit facility by mortgaging site no.38 along with others initially with State Bank of India and later taken over by Punjab National Bank. They further claim to be in peaceful possession from date of purchase. They also alleged

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that Smt.BS Mala colluding with plaintiffs and Srinivas had created fraudulent sale deeds. Defendants specifically contend that plaintiffs had not produced even a single document to show exact location of suit property or any bifurcation, sub-division or amalgamation of sites as claimed and therefore, plaintiffs’ claim was in respect of fictitious property and neither measurement nor description matched with title deed of Smt.BS Mala. Thus, there was cloud over title. It is contended, taking advantage of ex-parte order granted on 28.03.2023, plaintiffs had attempted to put up construction and suit was not bonafide. They allege compound wall shown in photographs was constructed by them and they had put up signboard on site to indicate their possession.

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From above, parties herein are claiming title and possession in respect of suit property under respective title deeds converging in registered partition deed dated 17.11.2003. In said deed, description of 13 guntas, share allotted to Smt.Revamma, namely ‘A’ schedule is as follows:

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East by : Portion of ‘C’ schedule property allotted . to Smt.Lakshmamma; West by : Gavipuram House Building Co-op. Society Layout;

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North by : Portion of ‘B’ schedule property allotted to Smt.Venkatalakshmamma; South by : Gavipuram House Building Co-op. Society Layout.

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Boundary description does not show ‘road’ on any of

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sides, unlike description of suit property, wherein ‘road’ is shown on north side. Further, schedule of 7930 sq.ft. of land purchased by Smt.BS Mala :

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i) As per sale deed dated 30.04.2004 document no.4852 totally measuring 3.64 guntas or 3965 sq.ft.

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East by :	Remaining portion of vendor’s property;
West by : North by :	Remaining portion of Smt.Revamma’s property; Road and remaining portion of Smt.Revamma’s property;
South by :	Gavipuram House Building Co-op. Society Layout.

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ii) As per sale deed dated 30.04.2004 document no.4853 totally measuring 3.64 guntas or 3965 sq.ft.

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East by : West by :	Property of Sri NR Nagaraju; Remaining portion of vendor’s western portion of property;
North by :	Road and remaining portion of Smt.Revamma’s property;
South by :	Gavipuram House Building Co-op. Society Layout.

¶129

Further, description of suit property is with reference to

¶130

khata number, which is same as khata number of property purchased by Smt.BS Mala from Smt.Revamma. Available material does not refer to any division of property of Smt.BS Mala. Thus,

¶131

¶132

there would appear genuine doubt about description of suit property by plaintiffs. As issuance of khata is one of factors taken note of by trial Court for granting injunction, impugned order suffers from being based on improper consideration.

¶133

Admittedly, both parties deny existence of properties of other party, but source their title to registered deeds, ultimately converging to Sri Kenchappa, but from different legal heirs of said Kenchappa. While plaintiffs source title to Smt.Revamma and claim suit property is portion of land allotted to share of Smt.Revamma, purchased by Smt.BS Mala; defendants trace title to Sri NR Nagaraju, who had purchased property from share of other legal heirs of Kenchappa, except Smt.Revamma. Though sale deeds of Smt.BS Mala cite Sri NR Nagaraju as owner of neighbouring land in boundary description, same by itself would not substantiate title nor appear fatal to plaintiffs’ claim. However, khata number of suit property which is 1698.75 sq.ft. being same as khata number of property purchased by Smt.BS Mala, which is 7930 sq.ft. would cast doubt about identity.

¶134

¶135

Adverting to grounds urged, indeed, it is rightly pointed that suit property is sandwiched between property of Smt.Revamma and remaining property of Smt.BS Mala. But, that doesn’t appear to either affect plaintiffs’ case at this stage nor substantiate that of defendants. Even contention that photographs produced would not show any vacant site on either side of suit property would be irrelevant and immaterial. Contention that defendants’ sale deed being prior to that of plaintiffs would also appear to be immaterial, as it is held above that prima-facie there does not appear to be dispute about title being substantiated.

¶136

Further, Ground Water Survey Report doesn’t bear particulars of land or site on which testing was done. Therefore, same would not be material document regarding possession or title. Likewise, sanction of loan in respect of property by itself would not be substantial material either regarding possession or title. Though, it is one of various factors taken note of by trial Court, its conclusions do not pivot on it.

¶137

Even contention that complaint filed by defendants before jurisdictional police station being prior to that of plaintiffs

¶138

¶139

would not be material. Normally in civil suits, police complaint would be relevant only for purposes of establishing cause of action and not as material document regarding title or possession. Reference to assertion about execution of GPA by legal heirs of late Kenchappa in favour of Sriramaiah would also not appear to be material, as defendants don’t source their title from him and such execution would affect that of plaintiffs. Further, contention that decree in suit filed by plaintiffs’ vendor did not affect in perfection of title would appear to be in vain as same was not amongst consideration for granting injunction. Submission that records produced by defendants were consistent in so far as title of defendants would require rejection, as held above, there is no apparent dispute about title at this stage.

¶140

Contention that continuation of injunction would cause more hardship to defendants than plaintiffs would prima-facie appear to be shallow, as it is neither pleaded nor established that there was any attempt by them to put up construction and no material is produced to substantiate for submitting application for building permission etc. unlike plaintiffs who pleaded and produced

¶141

¶142

such records. Consequently, contention based on ratio in Wander Limited case (supra) , would not be of much assistance to defendants, when ratio is that no party can be permitted to do anything he could not do prior to suit nor prevent any party from doing anything he could have done, but for filing of suit.

¶143

On other hand, plaintiffs contend that sale deed in respect of Sri NR Nagaraju was registered on 17.11.2003 at 2:00 p.m, prior to registration of partition deed on same day at 4:30 p.m. Therefore, title of Sri NR Nagaraju is under cloud. They contend that much prior to sale deed in favour of Sri NR Nagaraju, Smt.Revamma and her children had executed GPA in favour of Sriramaiah, who formed panchayat approved layout and sold sites therefore, title of Sri NR Nagaraju executed on 17.11.2003 was defective.

¶144

Contrary to specific pleadings in plaint, it is contended that after purchase of land by Smt.BS Mala, due to interference, she filed OS no.15962/2004 against Sri KT Sheshagiri for perpetual injunction which was decreed after contest. Thereafter in appeal against said decree, Sri KT Sheshagiri entered into compromise

¶145

¶146

conceding title and possession in favour of Smt.BS Mala. But submission appears to be consistent with records.

¶147

Insofar as contention that photographs taken prior to filing of suit do not show any signboard put by defendants as claimed. Perusal of photographs produced by both parties reveals that they are in respect of same land, but under different sources of title and with different properties numbers and with both parties denying existence of rival’s property. Under such circumstances, identity of land over which both parties are claiming right would be in issue. Such being case, contention based on assertion of defendants (in statement given before police in response to complaint filed by plaintiffs), that possession of their site was taken over by Bank would indicate defendants were not in possession, would not hold much water as admitting to possession of site with Bank, would run counter to plaintiffs claim equally.

¶148

Submission that this Court at time of disposal of W.P.no.11163/2023 had directed to continue order of status-quo with regard to suit property, would not be of any significance, as it was only until disposal of I.As.no.1 and 2. Even contention that title

¶149

¶150

deeds of defendants indicate site no.38 as situated in layout formed in Sy.no.42/63 would not appear to be substantiated on perusal of documents produced by defendants.

¶151

Perusal of layout plan at Annexure-P shows location of site no.38 with its measurements tallying with sale deed at Annexure-R. Therefore, contention that layout map doesn’t show site no.38 would appear inaccurate.

¶152

Conclusions of trial Court that though defendants deny existence of suit property, documents produced by plaintiffs establishes prima-facie case, sanction of loan, Ground Water Level Report issued after visiting site indicates possession and photographs produced would show compound wall and there is no initiation of construction by raising columns.

¶153

No pleading about progress of construction upto column level. Khata number of suit property same as khata number of larger extent belonging to vendor, though suit property was only portion thereof without any pleading nor material to show bifurcation.

¶154

¶155

There is no material produced by defendants to substantiate about initiation to begin construction. As per contention urged by plaintiffs before this Court, layout was not already developed by Sri K. Sriramaiah and site was sold and Smt.BS Mala got resolved earlier disputes with purchasers.

¶156

Plaintiffs have also contended that GPA holder Sri K. Sriramaiah had developed layout with approval from TMC in year 1995-96. Despite same, boundary description of share of Smt.Revamma and in partition deed does not mention existence of road on any side.

¶157

Though both parties alleged non-existence of property of other, as both source their title under respective registered sale deeds, without seriously disputing or substantiating same, dispute at best can be limited to dispute about identity of property and not title.

¶158

Reference by trial Court to Ground Water Test report for giving finding on possession even when said report doesn’t mention property of which test was conducted and reference to sanction of

¶159

¶160

loan by Janata Co-operative Bank, when such document is not recognized document of title or possession and as observed about contentions urged with reference to photographs produced by rival parties about failure to show vacant space or about absence of compound wall cannot be determining factors by themselves, but can be used or referred for purposes of corroboration.

¶161

In instant case, trial Court has taken note of sale deeds and also building permission obtained by plaintiffs while passing impugned order. Therefore, it cannot be stated that findings of trial Court are without any basis. But, as observed above, there is scanty reference to material placed by defendants when defendants have also relied upon registered sale deed corroborated with khata certificates, property tax paid receipts and pleaded about their property having been mortgaged to Punjab National Bank which they also claimed had taken possession. In view of above, it has to be held that conclusion of trial Court is not after taking note of all available material and in proper perspective.

¶162

At this stage, it is seen after grant of ex-parte order of temporary injunction on 28.03.2023, this Court in

¶163

¶164

W.P.no.11163/2023 filed by defendants initially granted interim order directing parties to maintain status-quo and continued same till disposal of I.As.no.1 and 2 by trial Court while disposing said writ petition. Thereafter, this Court in present appeal once again granted interim order dated 24.04.2024 directing parties to maintain status-quo with regard to suit property. Thus, order directing both parties to maintain status-quo in all respects with regard to suit property as being in existence for more than one and half years. Under above circumstances, instead of remitting matter back to trial Court for fresh consideration, it is found appropriate to direct both parties to continue to maintain status-quo with regard to suit property till disposal of suit and balance interest of both parties by directing trial Court to record evidence and dispose of suit in time bound manner. Thus, point for consideration is answered partly in affirmative. Consequently, following:

¶165

ORDER

¶166

Appeal is allowed in part, impugned order dated 13.03.2024 passed by XXV Additional City Civil and Sessions Judge, Bengaluru, (CCH-23), in O.S.no.2092/2023 allowing I.A.no.1 filed under Order XXXIX Rules 1 and 2 of CPC and rejecting I.A.no.2 filed under Order

¶167

¶168

XXXIX Rule 4 of CPC are modified directing both parties to maintain status-quo with regard to suit property in all respects until disposal of suit by further directing them to cooperate for same by avoiding seeking unnecessary adjournments. Trial Court is directed to dispose of suit preferably within one year from today by setting specific timeline for each stage of suit.

¶169

All contentions of both parties are kept open and observations and conclusions by trial Court at time of passing impugned order as well as by this Court shall be confined to interim stage and shall not come in way of trial Court passing appropriate judgment on basis of evidence adduced during trial.

¶170

Sd/(RAVI V. HOSMANI) JUDGE

¶171

GRD

Chethan Gowda L S v. Gangadhara Patel H

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Chethan Gowda L S v. Gangadhara Patel H

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