Plaintiff's appeal against rejection of temporary injunction over land allegedly re-conveyed by a co-operative society and gifted to her. The High Court held she failed to prove title or possession at the date of suit; the trial court's order was well considered.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO. 7209 OF 2017 (CPC)
BETWEEN:
SMT. B.S. ASHA, W/O SRI. PURUSHOTHAM, AGED ABOUT 37 YEARS, RESIDING AT NO.77/8, PUTTANNA ROAD, GANDHI BAZAAR, BASAVANAGUDI, BENGALURU-560 019.
…APPELLANT
(BY SRI. NAIK N.R., ADVOCATE)
AND:
Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA
…RESPONDENTS
(BY SRI. SWAMY SHIVA PRAKASH H., ADVOCATE FOR C/R1; NOTICE NOT GET ORDERED IN R/O R2)
NC: 2024:KHC:23824 MFA No. 7209 of 2017
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SEC.104 OF CPC, AGAINST THE ORDER DATED. 29.07.2017 PASSED ON I.A.NO.1 IN O.S.NO.2898/2017 ON THE FILE OF THE LXII ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BANGALORE, (CCH63), REJECTING I.A.NO.1 FILED U/O 39 RULE 1 & 2 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL JUDGMENT
Aggrieved by the orders passed in I.A.No.1 in O.S.No.2898/2017 dated 29.07.201 by the Court of LXII Addl. City Civil & Sessions Judge (CCH-63), Bangalore, the plaintiff is before this Court.
20.04.2017. The father of the plaintiff has gifted the portion of the suit schedule 'A' property described in the suit 'B' schedule property to the plaintiff. The suit 'A' schedule property is not the subject matter of layout formed by the Accountant General's House Building Co-operative Society and the first defendant has been falsely claiming 'B' schedule property as his property in Sy.No.10 of Arehalli Village has been trying to interfere with the plaintiffs peaceful possession. Hence she had come up with a suit and also IA seeking temporary injunction restraining the defendants from interfering with the plaintiff’s peaceful and enjoyment of the property. The defendants have filed objections and they have stated that the entire land of 4 acre 16 guntas in Sy.No. 6/1 of Arehalli village has been acquired by the Accountant General's House Building Cooperative Society and since the said lands stand in the name of society, question of giving up 20 guntas of land by the society does not arise. They have not executed any re-conveyance deed in favour of the plaintiff's father. In that case, the plaintiff's father cannot acquire any right over the plaint 'A' schedule property. It is stated that the plaintiff and her father in collusion with each other have created Gift Deed by giving
false measurement and boundaries. It is the case of the defendant that there is no plaint 'A' or 'B' schedule property to seek relief of injunction. In fact the plaintiff by virtue of the alleged Gift Deed dated 20.04.2017, is trying to put forth a false claim over the written statement schedule property belonging to defended No.1. It is their case that by virtue of the acquisition, defendant has become the absolute owner of the property and they have been in lawful possession and enjoyment of written statement property. After obtaining the necessary sanctioned plan and license, they have put up building over the said property by investing the hard earned money and plaintiff is not entitled for the injunction as prayed for. The trial Court had dismissed the application filed by the plaintiff. While dismissing the application, the trial Court has observed that the plaintiff in support of her contention that an extent of 20 acres is re-conveyed to him by the Accountant General House Building Co-operative Society, she has relied on a letter dated 4.3.2015. The Court observed that the survey number of the land of plaint 'A' schedule property is not mentioned in the said letter. Even the name of the plaintiff's father has not been mentioned there. The Court further
observes that if any moveable property having value of more than Rs.100/- is to be conveyed through registered document. Admittedly, the aforesaid Society has not transferred the suit 'A' schedule property through registered document to the plaintiff's father and Will dated 04.03.2015 will not confer any right to the plaintiff's father over plaint 'A' schedule property. The Court observes that the plaintiff has not established the title of his father over plaint 'A' schedule property. Since the donor himself has not acquired any title over the property, the alleged Gift Deed dated 20.04.2017 cannot confer any right to the plaintiff's over suit schedule 'B' property. The documents that are placed before the Court establishes that the defendant is the absolute owner and who is in possession of the property and the photographs produced by the defendant shows that the building construction is going on. At this stage, the plaintiff has not established existence of the suit schedule 'A' and 'B' properties and her possession over the same. The plaintiff is not entitled for the injunction as played far, and the balance of convenience is in favour of the defendant. If the injunction is granted, the defendants would be put to irreparable loss and
NC: 2024:KHC:23824 MFA No. 7209 of 2017
hardship and accordingly, dismissed the petition. Aggrieved thereby, the appellant/ plaintiff is before this Court.
NC: 2024:KHC:23824 MFA No. 7209 of 2017
them. The same is denied by the defendants. Defendants are denying the title of the plaintiff to the suit scheduled properties. According to them, the plaintiff is never in possession of the property. When the plaintiff's father has no title himself, he cannot confer a better title on the plaintiff and it is the defendants, who are in occupation of the property and in fact, after obtaining the necessary permission like license, they have been proceeding with the construction. The entire case of the plaintiff with regard to his title to the property is based on the Will of the plaintiff's father and a Gift Deed i.e., executed in favour of the plaintiff. It is an undisputed fact that the land is acquired long back and according to him, there is a reconveyance. The trial Court while dismissing the application, has rightly observed that an immovable property just like that by way of resolution, cannot be re-conveyed and that has to be by way of a registered document. Admittedly, there is no document in favour of the plaintiff and apart from that, the plaintiff had not filed any document to show that he is in possession of the property as on the date of filing of the suit. But, it is the defendant who had filed the documents to show that they have been in possession of the property and they
have made certain constructions. When a suit for bare injunction is filed, the plaintiff has to prove that she is in possession of the property as on the date of filing of the application, which the plaintiff has miserably failed to show and the trial Court had rightly held that the plaintiff has failed to make out a prima facie case, balance of convenience and reparable loss. Hence, this Court finds no reason to interfere with the well Considered order passed by the trial Court.
ORDER
SD/(LALITHA KANNEGANTI) JUDGE
KA, List No.: 1 Sl No.: 22
1 issue framed by the court
Whether the trial court erred in rejecting the plaintiff's application for temporary injunction in a bare injunction suit where the plaintiff failed to show possession on the date of suit.
3 provisions across 1 enactments
Smt. B.S. Asha
Sri. T. Sathyababu
Sri. A. Damodar
Lalitha Kanneganti
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
