Appeal against temporary injunction in property suit set aside. High Court notes appellants filed undertaking not to create third party rights or alienate property. Appeal disposed without adjudicating merits.
Appeal disposed off; all Interlocutory applications in appeal closed due to undertaking by appellants.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO. 5155 OF 2022 (CPC)
BETWEEN:
Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA
BENGALURU 560 066
…APPELLANTS
(BY MS.NIREEKSHA D.J., FOR SRI. YESHU BABA R MISHRA, ADVOCATE)
AND:
…RESPONDENTS
(BY SMT.REVATHY ADINATH NARDE, ADVOCATE FOR R1 SMT.BHARATI R.B., ADVOCATE FOR R2)
THIS MFA FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED:21.04.2022 PASSED ON I.A.NO.1 IN OS.NO.309/2021 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, CHICKBALLAPUR, ALLOWING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.
NC: 2024:KHC:36995 MFA No. 5155 of 2022
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL JUDGMENT
The present appeal is filed aggrieved by the order passed in I.A.No.1 in O.S.No.309/2021 dated 21.04.2022 by the II Additional Senior Civil Judge and JMFC, Chikkaballapur, whereby the trial Court had allowed I.A.No.1 and granted temporary injunction restraining the defendants from creating third party rights and dealing with the schedule property in any manner on the strength of Lease Deed dated 20.06.2017 pending disposal of the suit.
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defendant Nos.1 to 7 and persons claiming under them from creating new documents/third party rights in regard to the suit schedule property. It is the specific case of the plaintiff that he is the owner in possession of the agriculture land bearing Survey No.27 measuring 4 acres, situated at Chikka Muddenahalli Village, Nandi Hobli, Chikkaballapur Taluk and District and the said land has been acquired under grant certificate dated 01.05.1973 issued by the Tahsildar, Chikkaballapur Taluk. It is the case of the plaintiff that pursuant to the said grant, he has been in continuous possession and enjoyment of the property. The above mentioned property was subjected to phod and re-surveyed and it was allotted with a new survey No.43 and revenue records were changed accordingly in the name of the plaintiff. Subsequent to the change of the survey number, there were some discrepancies found in the revenue records and the khatha of the schedule property was reflecting in the name of defendant No.1 and the plaintiff challenged the same before the Office of the Tahsildar, Chikkaballapur Taluk and the Tahsildar found some
discrepancies in respect to the khatha and actual possession of the land and accordingly passed an order dated 12.12.2013,
rectifying the same and holding the plaintiff as the Khathedhar in respect of the schedule property and defendant No.1 as the Khathedhar in respect of the property bearing survey No.23/1 measuring 0-35 guntas. Then the plaintiff filed an application for change of use of land from agricultural to non-agricultural commercial (educational) purpose before the Office of the Deputy Commissioner, Chikkaballapur District and the authority after collecting the requisite fee ordered for conversion of the use of schedule property from agricultural to non-agricultural commercial (educational) purpose. It is the case of the plaintiff that basing on the fraudulent Lease Deed, the defendants tried to dispossess the plaintiff of his valuable property by misusing the fact that the plaintiff was once associated with Sri Sathya Sai Loka Seva Trust, Muddenahalli. In this regard, criminal cases were also filed. It is the case of the plaintiff that the Lease Deed dated 20.06.2017 does not hold good in the eyes of law, by creating the Lease Deed, the defendants have created an encumbrance on the plaintiff's property posing a threat to the ownership of the plaintiff and if the same is not cancelled by decreeing the suit, the plaintiff will be put to irreparable
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loss. Hence, the plaintiff filed the suit seeking a declaration and injunction.
relief as sought for by the plaintiff. While allowing I.A.No.1, the trial Court had observed that the plaintiff is relying on a grant
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which is of the year 1973. The trial Court relying on Section 90 of the Indian Evidence Act, where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting and in the case of a document executed or arrested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Hence, the trial Court came to the conclusion that the plaintiff had a prime facie case. The Court observed that the plaintiff has come before the Court with clean hands and has not suppressed any material fact and he is entitled for temporary injunction. The trial Court further observed that the suit property deserves to be protected and maintained in the form and shape as it exists today so that the rights of the plaintiff are adequately protected and if the temporary injunction is not granted, the defendants would alienate the property, then ultimately the relief which is claimed in the instant suit may be frustrated and the Court cannot grant appropriate reliefs to the parties and the Court held that the balance of convenience lies more in favour of the plaintiff.
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Accordingly, the trial Court allowed I.A.No.1 and granted the relief. Aggrieved thereby, the appellant/defendant No.8 is before this Court.
"AFFIDAVIT IN LIEU OF UNDERTAKING
I, Sri. S.S. Naganand, S/o. Late S.G. Sundaraswamy, Aged about 68 years, R/a. No. 50, Naman, 2nd Cross, Achaiah Layout, RMV Extension, Bengaluru - 560 080, do hereby solemnly affirm and state on oath as follows:
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1. I state that the Appellant No.3 in the above Appeal. I am authorized to swear to this Affidavit on behalf of other Appellants too. I am aware of the facts and circumstances of the above case and hence I am deposing as hereunder.
2. I state that the Appellants herein, without prejudice to their rights and liberties, and in view of the fact of pendency of the above matter; do hereby undertake that the Appellants herein shall not create any third party rights over the Suit Schedule Property in OS No.309/2021, pending on the file of II Additional Senior Civil Judge and JMFC, at Chickaballapur, without prior leave of the Hon'ble Trial Court.
Wherefore, it is most humbly prayed that this undertaking be taken Affidavit may be taken on record and the above matter may be considered, in accordance with law, in the interest of justice and equity.
VERIFICATION
I, do hereby declare that whatever stated above in paras 1 to 2 are true and correct on the basis of records and to the best of my knowledge, information and belief.
Bengaluru
Deponent"
Date: 10.09.2024
By way of this affidavit, it is undertaken by the defendant
that they will not create any third party rights over the suit schedule property in O.S.No.309/2021, pending on the file of
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the II Additional Senior Civil Judge and JMFC at Chikkaballapur,
without prior leave of the trial Court. Accordingly, the following:
ORDER
SD/(LALITHA KANNEGANTI) JUDGE
MEG
List No.: 1 Sl No.: 17
2 issues framed by the court
Whether the appeal should be heard further in light of the appellants undertaking not to create third party rights pending disposal of the suit.
Whether the undertaking affording to the appellants not to alienate property without court leave enables the High Court to dispose of the appeal without adjudication.
2 provisions across 2 enactments
SATHYA SAI CENTRAL TRUST AND OTHERS
B.N.NARASIMHA MURTHY AND SATHYA SAI LOKA SEVA TRUST
LALITHA KANNEGANTI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
