Smt.K. Mahalakshmi Vs Smt. Raji Bai

APPELLANTS 1 TO 6 ARE ALL REPRESENTED BY THEIR GPA HOLDER V. RAVI KUMAR S/O H.S. VENKAT RAO, AGED ABOUT 52 YEARS, R/AT NO. 04, 3RD MAIN, PUTTENAHALLI, J.P. NAGAR 7TH PHASE BENGALURU - 560 078.

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…APPELLANTS

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(BY SRI. M.R. RAJAGOPAL, SR. COUNSEL A/W SRI. V.B. SHIVAKUMAR, ADVOCATE)

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AND:

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SMT. RAJI BAI W/O LATE SHANTILAL MUTHA AGED ABOUT 70 YEARS R/AT NO 74, NARAYAN NIVAS, CHURCH ROAD, SHANTHINAGAR, BENGALURU - 560 027.

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SRI BHAVAR LAL MUTHA S/O LATE SHANTILAL MUTHA AGED ABOUT 51 YEARS R/AT NO 74, NARAYAN NIVAS, CHURCH ROAD, SHANTHINAGAR, BENGALURU - 560 027.

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SHRI. DINESH MUTHA S/O LATE SHANTILAL MUTHA AGED ABOUT 47 YEARS R/AT NO. 74, NARAYAN NIVAS, CHURCH ROAD, SHANTHINAGAR, BENGALURU - 560 027.

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SHRI. HITESH MUTHA S/O LATE SHANTILAL MUTHA AGED ABOUT 45 YEARS

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R/AT NO. 74, NARAYAN NIVAS, CHURCH ROAD, SHANTHINAGAR, BENGALURU - 560 027.

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SMT. ASHA JAJU D/O LATE SHANTILAL MUTHA AGED ABOUT 44 YEARS R/AT NO 74, NARAYAN NIVAS, CHURCH ROAD, SHANTHINAGAR, BENGALURU - 560 027

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SMT. ANJU BHANSALI D/O LATE SHANTILAL MUTHA AGED ABOUT 42 YEARS R/AT NO 74, NARAYAN NIVAS, CHURCH ROAD, SHANTHINAGAR, BENGALURU - 560 027.

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SHRI H VENKATESH S/O HANUMAIAH AGED ABOUT 46 YEARS R/AT NO. 27, SY NO. 09, 2ND STAGE, 8TH CROSS, 1ST MAIN, MARUTHINAGARA ULLAL POST, BENGALURU - 560 056.

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SMT. SUCHETA RAJ W/O ARUN KUMAR M.S. AGED ABOUT 43 YEARS "SHIVANILAYA", NEXT TO VIJAYA BANK B H ROAD, SHIMOGGA - 577 201.

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SMT. SHOBA R W/O M.J. SIDDARUDHA AGED ABOUT 33 YEARS R/A HOUSE NO. 5, 7TH CROSS, 10TH MAIN ROAD, OPP SRIRAMPURA LAYOUT JANABHARATHINAGAR BENGALURU - 560 056

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SHRI M.J. SIDDARUDHA, S/O JOGIGOWDA, AGED ABOUT 36 YEARS, R/A HOUSE NO. 5, 7TH CROSS, 10 (TH) MAIN ROAD, OPP SRIRAMPURA LAYOUT, JNANABHARATHINAGAR, BENGALURU - 560 056.

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SMT.L. ROOPASHRI, D/O N. LANKASUNDER, AGED ABOUT 24 YEARS, R/A NO. 12, 1 (ST) MAIN ROAD, 1(ST) STAGE, 5TH PHASE, WEST OF CHORD ROAD, RAJAJINAGAR, BENGALURU - 560 044.

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SMT. L. SHILPASHRI, D/O N. LANKASUNDER, AGED ABOUT 28 YEARS, R/A NO. 12, 1 (ST) MAIN ROAD, 1(ST) STAGE, 5 (TH) PHASE, WEST OF CHORD ROAD, RAJAJINAGAR, BENGALURU - 560 044.

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KUM. L. DEEPASHRI D/O N. LANKASUNDER, AGED ABOUT 10 YEARS, R/A NO. 12, 1ST MAIN ROAD, 1(ST) STAGE, 5 (TH) PHASE, WEST OF CHORD ROAD, RAJAJINAGAR, BENGALURU - 560 044. SINCE MINOR, REPRESENTED BY HER FATHER AND NATURAL GUARDIANSHRI. N. LANKASUNDAR.

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SHRI. THIMMEGOWDA, S/O LATE RAMAIAH, AGED ABOUT 47 YEARS, R/A NO. 25, BEHIND BHAGAWAN BUDDHA,

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HOMEOPATHI COLLEGE, JNANABHARATHI, BENGALURU - 560 056

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SHRI. UMESHKUMAR, S/O MOHANLAL, AGED ABOUT 50 YEARS, R/A NO. 907/3, 6TH CROSS, OPP JAIN TEMPLE, K.N. EXTENSION, YESHWANTHPURA, BENGALURU - 560 022

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SHRIHONNAIAH, S/O CHIKMALLAIAH, AGED ABOUT 60 YEARS, R/A BILLANAKOTE VILLAGE, BILLANAKOTE POST, NELAMANGALA TALUK, BENGALURU URBAN DISTRICT - 562 111.

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SMT. LINGAMMA, W/O LAKSHMINARAYANAPPA AGED ABOUT 42 YEARS, R/A 156, VADDARAHALLI VILLAGE, KADABAGERE POST, BENGALURU NORTH TALUK - 562 130.

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SMT RANGALAKSHMAMMA W/O LATE PUTTARANGAIAH, AGED ABOUT 51 YEARS, R/A MYLANAHALLI VILLAGE, UDUKUNTE POST, MAGADITALUK, SOLURHOBLI, RAMANAGAR DISTRICT - 562 127.

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SHRI N. MAHESH, S/O. S. NAGARAJ, AGED ABOUT 41 YEARS, R/A NO. G-52, 1ST CROSS, 'C' STREET, MAGADI ROAD, BENGALURU - 560 023.

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SMT. K.R. JYOTHI W/O. M. RAJAMOULI, AGED ABOUT 50 YEARS, R/A NO. 201/3, COTTONPET MAIN ROAD, BENGALURU - 560 002.

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SMT. R. HEMALATHA, W/O B.P. MAHENDRA, AGED ABOUT 41 YEARS, R/A NO. 113, SANYASIKUNTE, BHAVANI NAGAR, GAVIPURAM GUTTAHALLI, BENGALURU - 560 019.

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SMT. K. RAMA, S/O V. KRISHNAPPA, AGED ABOUT 78 YEARS, R/A NO. 122, SHANTHILAL MUTHA LAYOUT, SEEGEHALLI GATE, YESHWANTHAPURA HOBLI, BENGALURU - 560 023.

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SHRI. G.R. SRINATH, S/O LATE G.V. RAMESH, AGED ABOUT 67 YEARS, R/A NO. 1, SHREESHAILA, HOUSE NEAR JSS SCHOOL, TEACHERS COLONY, KONANAKUNTE, BENGALURU - 560 062

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SHRI. R. VIVEK, S/O A. RANGANATH, AGED ABOUT 38 YEARS, R/A NO.3, 8TH CROSS, 5TH MAIN ROAD, RPC LAYOUT, VIJAYNAGAR, BENGALURU - 560 040

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SHRI BALASUBRAMANYA, S/O LATE K.V. NAGESH, AGED ABOUT 77 YEARS, R/A NO.86, SEEGEHALLI VILLAGE, KODIGEHALLI POST, YESHWANTHPURA HOBLI, BENGALURU NORTH TALUK, BENGALURU - 560 022.

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SHRI S. MURALIDHAR S/O. B.R. SRIDHAR, AGED ABOUT 37 YEARS, R/A NO. 567, SEEGEHALLI VILLAGE, KODIGEHALLI POST, YESHWANTHPURA HOBLI, BENGALURU NORTH TALUK, BENGALURU - 560 022.

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SMT. AMBIKA S.N. W/O PRAKASH M, AGED ABOUT 27 YEARS, R/A NO. 34/1, RUDRESHWAR NILAYA, 4TH CROSS, 4TH MAIN ROAD, AGRAHARA DASARAHALLI, MAGADI MAIN ROAD, BENGALURU - 560 079

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SMT. LAKSHMIDEVI W/O HANUMANRAM, AGED ABOUT 40 YEARS, R/A NO. 38, 8TH CROSS, SANJEEVINI NAGAR, MUDALAPALYA, BENGALURU - 560 072.

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SHRI S. SHIVARAM, S/O LATE SIDDAIAH, AGED MAJOR, R/A NO. 1/22,16TH 'A' MAIN ROAD, 4TH BLOCK, NANDINI LAYOUT, BENGALURU - 560 096.

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SMT. G. SHANTHI, W/O G. MANIKAM VELU, AGED ABOUT 47 YEARS, R/A NO. 17, 1ST MAIN ROAD, 2ND STAGE, OKALIPURAM, BENGALURU - 560 021

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SHRI. RUDRESH BABU, S/O R. SEETAPPA, AGED ABOUT 49 YEARS, R/A NO. 34/1,4TH CROSS,

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AGRAHARA DASARAHALLI, MAGADI MAIN ROAD, BENGALURU - 560 079

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SMT. B.C. MAMATHA W/O M. RANGAIAH, AGED ABOUT 48 YEARS, R/A NEAR AMBAMAHESHWARI TEMPLE, ANANDANAPPA CROSS ROAD, KAMAKSHIPALYA, BENGALURU - 560 079

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SHRI. NARAYANSINGAH, S/O LATE MANGANLALJI, AGED ABOUT 47 YEARS, R/A NO. 23, JVM BHAVAN, MIG 2ND MAIN ROAD, KHB COLONY, 1ST STAGE, BASAVESHWARA NAGAR, BENGALURU - 560 079.

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SHRI. BHANARAM CHOUDHARY, S/O KESAJI, AGED ABOUT 52 YEARS, R/A C/O 227, MAMATHA PROVISION STORE, AAKLU COMPLEX, R.T. STREET, BENGALURU - 560 053

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SMT. NANJUNDAIAH, S/O LATE KEMPALAH, AGED ABOUT 60 YEARS, R/A NO. 976, 6TH MAIN, CHOWDESHWARI LAYOUT, MARATHAHALLI, BENGALURU - 560 037.

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SHRI. PREMRAJ SONI S/O PUKHARAJ SONI, AGED ABOUT 54 YEARS, R/A NO. 19/2, 15TH CROSS, A BLOCK, BHUVANESHWARI NAGAR, MAGADI ROAD, BENGALURU - 560 023

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SHRI. KHUMBRAN CHOUDHARY S/O RAJAJI, AGED ABOUT 52 YEARS, R/A C/O NO. 14, PUSHPAK MATCHING CENTER, MIG, KHB COLONY, BASAVESHWARA NAGAR, BENGALURU - 560 079.

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SHRI. NIRANJAN.V, S/O J. VENKATEGOWDA, AGED ABOUT 40 YEARS, R/A C/O NO. 6, N. GOVINDEGOWDA, RAJSA APARTMENTS, NO. 77/1, 1ST CROSS, 4TH MAIN ROAD, MALLESHWARAM, BENGALURU - 560 003.

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SMT. G. PRAMILA, W/O B.G. ANAND, AGED ABOUT 40 YEARS, R/A NO.1316,N. GOVINDEGOWDA, 12TH CROSS, 7TH MAIN ROAD, WEST OF CHORD ROAD, MAHALAKSHMIPURAM EXTENSION, BENGALURU - 560 086.

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SHRI. SOHANLAL, S/O RAMLAL, AGED ABOUT 35 YEARS, R/A MANHANABELE, PUNARVASATI COLONY, BENGALURU NORTH TALUK, BENGALURU - 560 130

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SHRI. B.G. ANAND, S/O T. GOVINDAPPA, AGED ABOUT 65 YEARS, R/A NO. 1316, N. GOVINDEGOWDA, 12TH CROSS, 7TH MAIN ROAD, WEST OF CHORD ROAD, MAHALAKSHMIPURAM EXTENSION, BENGALURU - 560 086.

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SMT. HANUMAKKA, W/O MASTANAIAH, AGED ABOUT 63 YEARS, R/A NO. 1728, PIPELINE LINK ROAD, KALIAN NAGAR, T. DASARAHALLI, BENGALURU - 560 067.

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SMT. PAVANKUMARI, W/O MANOHARILAL AGED ABOUT 54 YEARS, R/A NO. 62 AND 63, 2ND MAIN ROAD, PALACE GUTTAHALLI, BENGALURU - 560 003

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SMT. HEMAVATHI, W/O ARULOLI, AGED ABOUT 43 YEARS, R/A NO. 54/1, SWASTI ROAD, SHANTHINAGAR BENGALURU - 560 027.

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SHRI . EREGOWDA. S/O THAMMEGOWDA, AGED ABOUT 48 YEARS R/A NO. 42/2,MARAPPA LAYOUT, 2ND MAIN ROAD, RAJARAJESHWARI NAGAR, MAHALAKSHMIPURAM, BENGALURU - 560 098

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SHRI. B.K. HANUMANTARAYAPPA S/O KAMBADA NARASAIAH, AGED ABOUT 58 YEARS, R/A NO. 1552, CORPORATION COLONY, 6TH CROSS, GOVINDARAJ NAGAR, BENGALURU - 560 079.

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SMT. MITU SHARMA, W/O MUKESH SHARMA, AGED ABOUT 40 YEARS, R/AT NO. 9/2,4TH CROSS,

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MANJUNATH NAGAR, MAGADI ROAD, BENGALURU - 560 023.

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SHRINARAYANLAL CHOUDHARY, S/O SRI HEMAII, AGED ABOUT 60 YEARS, R/A NO. 9/1, LAKSHMI ROAD, SHANTINAGAR, BENGALURU - 560 027.

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SHRI. K.V. GOVINDARAJU, AGED MAJOR, S/O VENKATACHALAIAH, R/AT KITTANAHALLI DHAKALE, DENANJAIAJPALYA, BENGALURU NORTH TALUK - 562 130.

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SMT. SUNITHA GOSWAMI, D/O LATE PREMSAGAR GOSWAMI, AGED ABOUT 55 YEARS, W/O SACHITKUMAR RAMDAS, R/A SADER ROAD, AMBIKAPUR, SURGUJA, CHATTISGARH - 597 001.

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…RESPONDENTS

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(BY SRI. DHANANJAY JOSHI, SR. COUNSEL A/W SRI. LAKSHA KALAPPA B, ADVOCATE AND SRI. NACHAPPA A.K, ADVOCATE FOR C/R1 TO R6; SRI. ASHOK HARANAHALLI, SR. COUNSEL A/W SRI. ABIJITH M.M, ADVOCATE FOR R40; NOTICE NOT ORDERED IN RESPECT OF R7 TO R39 AND R41 TO R50)

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THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 14.11.2024 PASSED ON IA NOS.2 TO 4 IN O.S.NO.1175/2024 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND BENGALURU RURAL DISTRICT, BENGALURU, REJECTING IA NOS.2 TO 4 FILED U/O.39 RULE 1 AND 2 OF CPC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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ORAL JUDGMENT

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Though the appeal is listed for admission, with

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consent of both the learned counsel appearing for the parties, the matter is taken up for final disposal.

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The appeal is filed by the appellants/plaintiff Nos.1 to 6 questioning the order passed on I.A.Nos.2 to 4 filed under Order XXXIX Rule 1 and 2 of CPC in O.S. No.1175/2024 dated 14.11.2024 by the Court of II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, whereby I.A.Nos.2 to 4 are dismissed.

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I.A.No.2 is filed under Order XXXIX Rule 1 and 2 of CPC for grant of an order of temporary injunction restraining the defendants from interfering and dispossessing the plaintiffs from the suit schedule properties, who are stated to be settled lawful possession.

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4. I.A.No.3 is filed under Order XXXIX Rule 1 and

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2 of CPC for grant of an order of temporary injunction

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restraining the defendants from alienating the suit schedule property, pending disposal of the suit.

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I.A.No.4 is filed under Order XXXIX Rule 1 and

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2 of CPC for grant of temporary injunction restraining the defendants from entering upon the schedule property and excavating the property for the purpose of putting up construction of any building thereon which is not permitted in the Green Zone Area as indicated in the master plan either independently or collectively, pending disposal of the suit.

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The plaintiffs have filed suit for declaration and permanent injunction. In the plaint, it is stated that one Archak Sanjeevachar, who is grand father of the plaintiffs purchased the lands from Laxmipathy Naidu totally measuring 40 acres under the registered sale deed dated 23.04.1945 in survey Nos.52, 53, 56, 57, 58 and 59. It is the case of the plaintiffs that the plaintiffs' grand father namely Archak Sanjeevachar was the owner and was in

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possession and the plaintiffs have inherited the suit schedule property and presently the plaintiffs are in settled possession. But the father of defendant Nos.1 to 6 by name Shanthilal Mutha surreptitiously got entered his name in the records of rights dated 28.06.1993. On the strength of said illegal entries made in the name of father of defendant Nos.1 to 6 and also in the name of one Jayanthilal Mutha who started making illegal residential layout and formed 508 sites and sold to various persons but the plaintiffs are in settled possession. Therefore, filed the suit for declaration and permanent injunction.

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7. It is the case of the defendants in brief that one

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Patel Anjane Gowda was the agreement of sale holder and the said Patel Anjane Gowda got decree in a suit filed for specific performance of agreement and it was confirmed in Regular Second Appeal before this Court. Thus, Patel Anjane Gowda has become owner of the suit schedule land. Thereafter, his son has sold the property to the father of defendant Nos.2 to 6 and one Jayantilal Mutha.

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Therefore, the plaintiffs are not owners of the property and thereafter, the father of defendant Nos.2 to 6 namely Shantilal Mutha and Jayantilal Mutha have formed layout after obtaining requisite clearance from the Competent Authorities and sold to various persons. Thus, prays to dismiss the appeal.

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When the plaintiffs have filed suit for reliefs of declaration and permanent injunction, they have also filed I.A.Nos.2 to 4 for grant of temporary injunction as above stated. The trial Court has dismissed the said applications i.e., I.A. Nos.2 to 4 assigning the reasons that the plaintiffs themselves in the plaint have stated that defendants Nos.1 to 6 have formed layout and 508 sites were formed and sold to various persons and many purchasers are in possession and therefore, prima facie plaintiffs are not found to be in possession, and since there are various contentious issues involved, though the plaintiffs have made a prima facie case, they have not shown balance of convenience. Hence, if an order of

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temporary injunction is granted, that would cause injury or loss to the purchasers of the sites. Therefore, assigning these reasons, dismissed the applications.

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Sri. M.R.Rajagopal, learned Senior Counsel appearing for the plaintiffs/appellants submitted that the plaintiffs are in settled possession but not the defendants. It is submitted that though Archak Sanjeevachar suffered a decree in a suit for specific performance, but physical possession was not handed over to Patel Anjane Gowda and this Archak Sanjeevchar was continued to be in possession and thereafter, the plaintiffs who are the legal heirs are in possession over the suit property. Therefore, the plaintiffs are in settled possession. Also, it is submitted that the Special Deputy Commissioner has observed while considering the applications for grant of occupancy rights that the Sanjeevarchar was in possession of the property even as on 12.04.1989. Therefore, prays to allow the applications by strenuously contending that the plaintiffs are in settled possession. Further, it is submitted that the

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trial Court even observing that the plaintiffs have made a prima facie case and by observing so, the trial Court ought to have granted an order of temporary injunction but rejected the applications which is perverse. Hence, prays to allow the appeal by granting an order of temporary injunction as prayed for.

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On the other hand, learned Senior Counsels appearing for the respondents submitted that Sanjeevachar suffered a decree of specific performance of agreement and which was confirmed before this Court in Regular Second Appeal and before the Executing Court, the decree for specific performance was executed and sale deed was executed in favour of Patel Anjane Gowda and thus, the Court Commissioner has executed sale deed and delivered possession. Thereafter, the son of Patel Anjane Gowda sold the property to defendant Nos.1 to 6 and one Jayanthilal Mutha and thereafter, they have formed layout and 508 sites were formed and various purchasers are in

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possession over the sites for long time. Therefore, the plaintiffs are not in possession over the suit property.

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Further, the plaintiffs have suppressed the fact in the plaint that Sanjeevachar has sold the schedule land to one K.C.Suresh after decree of specific performance. When this being the fact, Sanjeevachar has lost title of the schedule land, but this fact is suppressed. Though the sale deed executed by Sanjeevachar in favour of K.C.Suresh is not legal, by the very conduct of Sanjeevachar and admittedly he is not in possession. Therefore, considering all these materials on records, the trial Court had rightly rejected the applications filed for temporary injunction. Therefore, the appeals are liable to be set aside.

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Upon various submissions made by the learned Senior Counsels on both the sides and perusal of the materials on record, the following points arise for consideration of this Court are as under:

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i. Whether, under the facts and circumstances of the case, the plaintiffs make out prima facie case so as to grant an order of temporary injunction?

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ii. Whether, under the facts and circumstances of the case, the plaintiffs make out case of balance of convenience so as to grant an order of temporary injunction?

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iii. Whether, under the facts and circumstances of the case, if an order of temporary injunction is not granted, then the plaintiffs would suffer any irreparable loss or injury?

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iv. Whether the order passed by the trial Court requires interference by this Court?

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Reg: The principle of law of injunction:

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The Hon’ble Supreme Court in the case of

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Ramakant Ambalal Choksi vs. Harish Ambalal Choksi

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and others¹ held at paragraph Nos.22, 23, 24, 25, 26, 27, 28, 29, 32, 35, 36 and 37 as under:

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1 Civil Appeal No.13001/2024 dated 22.11.2024

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“ 22. With regards to (a), this Court held thus:

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In such appeals, the appellate court will not interfere with the exercise of discretion of the court of the first instance and substitute its own discretion, except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely, or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions …. The appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below … If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court’s exercise of discretion.

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23. This Court, while arriving at the above findings, relied on its earlier judgment in Printers (Mysore) v. Pothan Joseph reported in (1960) SCC Online SC 62 where it was held thus:

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“[…] as has been observed by Viscount Simon LC in Charles Osenton & Co v. Johnston – the law as to reversal by a court of appeal of an order made by a judge below in the exercise of his/her discretion is well established, and any difficulty that arises is due only to the application of wellsettled principles in an individual case.”

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24. It is pertinent to note that is Printers (supra) this Court had held that ignoring relevant facts is also a ground for interfering with the discretion exercised by the trial court. Furthermore, Viscount Simon LC in Charles Osenton & Co v. Johnson reported in 1942 S.C. 130, after stating the above, went on to quote Lord Wright’s decision in Evans v. Bartlam reported in 1937 A.C. 473 :

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“It is clear that the court of appeal should not interfere with the discretion of a judge acting within his jurisdiction unless the court is clearly satisfied that he was wrong. But the court is not

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entitled simply to say that if the judge had jurisdiction and had all the facts before him, the court of appeal cannot review his order unless he is shown to have applied a wrong principle. The court must, if necessary, examine anew the relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order.”

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25. In Evans (supra) case, Lord Wright made it clear that while adjudicating upon the discretion exercised by the trial court, the appellate court is obliged to consider the case put forward by the appellant in favour of its argument that the trial court exercised its discretion arbitrarily or incorrectly in the circumstances.

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26. What flows from a plain reading of the decisions in Evans (supra) and Charles Osenton (supra) is that an appellate court, even while deciding an appeal against a discretionary order granting an interim injunction, has to:

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a. Examine whether the discretion has been properly exercised, i.e. examine whether the discretion exercised is not arbitrary, capricious or contrary to the principles of law; and

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b. In addition to the above, an appellate court may in a given case have to adjudicate on facts even in such discretionary orders.

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27. The principles of law explained by this Court in Wander’s (supra) have been reiterated in a number of subsequent decisions of this Court. However, over a period of time the test laid down by this Court as regards the scope of interference has been made more stringent. The emphasis is now more on perversity rather than a mere error of fact or law in the order granting injunction pending the final adjudication of the suit.

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28. In Neon Laboratories Ltd. v. Medical Technologies Ltd. reported in (2016) 2 SCC 672 this Court held that the Appellate Court should not flimsily, whimsically or lightly interfere in the exercise of discretion by a subordinate court unless such exercise

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is palpably perverse. Perversity can pertain to the understanding of law or the appreciation of pleadings or evidence. In other words, the Court took the view that to interfere against an order granting or declining to grant a temporary injunction, perversity has to be demonstrated in the finding of the trial court.

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29. In Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan reported in (2013) 9 SCC 21 this Court emphasised on the principles laid down in Wander (supra) and observed that while the view taken by the appellate court may be an equally possible view, the mere possibility of taking such a view must not form the basis for setting aside the decision arrived at by the trial court in exercise of its discretion under Order 39 of the CPC. The basis for substituting the view of the trial court should be malafides, capriciousness, arbitrariness or perversity in the order of the trial court. The relevant observations are extracted below:

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“20. In a situation where the learned trial court on a consideration of the respective cases of the parties and the documents laid before it was of the view that the entitlement of the plaintiffs to an order of interim mandatory injunction was in serious doubt, the Appellate Court could not have interfered with the exercise of discretion by the learned Trial Judge unless such exercise was found to be palpably incorrect or untenable. The reasons that weighed with the learned Trial Judge, as already noticed, according to us, do not indicate that the view taken is not a possible view. The Appellate Court, therefore, should not have substituted its views in the matter merely on the ground that in its opinion the facts of the case call for a different conclusion. Such an exercise is not the correct parameter for exercise of jurisdiction while hearing an appeal against a discretionary order. While we must not be understood to have said that the Appellate Court was wrong in its conclusions what is sought to be emphasized is that as long as the view of the trial court was a

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possible view the Appellate Court should not have interfered with the same following the virtually settled principles of law in this regard as laid down by this Court in Wander Ltd. v. Antox India (P) Ltd.”.

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32. The appellate court in an appeal from an interlocutory order granting or declining to grant interim injunction is only required to adjudicate the validity of such order applying the well settled principles governing the scope of jurisdiction of appellate court under Order 43 of the CPC which have been reiterated in various other decisions of this Court. The appellate court should not assume unlimited jurisdiction and should guide its powers within the contours laid down in the Wander (supra) case.

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35. Any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough reported in (1878) 1 LR 1r 331, the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey reported in 106 NW 814, the Court defined “perverse” as “turned the wrong way”, not right; distorted from the right; turned away or deviating from what is right, proper, correct, etc.

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36. The expression “perverse” has been defined by various dictionaries in the following manner: a. Oxford Advanced Learner’s Dictionary of Current English, 6^th Ed. Perverse – Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.

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b. Longman Dictionary of Contemporary English – International Edition Perverse – Deliberately departing from what is normal and reasonable.

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c. The New Oxford Dictionary of English – 1998 Edition Perverse – Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.

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d. New Webster’s Dictionary of the English Language (Deluxe Encyclopedic Edition) Perverse – Purposely deviating from accepted or expected behavior or opinion; wicked and wayward; stubborn; cross or petulant.

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e. Stroud’s Judicial Dictionary of Words & Phrases, 4^th Ed.

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Perverse – A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether but is altogether against the evidence.

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37. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man’s inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity. (See: Damodar Lal v. Sohan Devi and others reported in (2016) 3 SCC 78) .”

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Further, the Hon’ble Supreme Court in the case

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of Wander Ltd. and another vs. Antox India P

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Ltd.² held at Paragraph No.14 as under:

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“ 14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory

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2 1990(Supp) SCC 727

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injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact interference with the trial court’s exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph: (SCR 721)

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“… These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton …. the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.”

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The appellate judgment does not seem to defer to this principle.”

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Further, the Hon’ble Supreme Court in the case

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of D.R. Chawla and Others vs. Municipal Corporation

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of Delhi and other³ held at Paragraph No.30 as under:

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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

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3 (1993) 3 SCC

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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 granted such relief according to the legal principles --- ex debito jutitiae. 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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16. Further, the Hon’ble Supreme Court in the case

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of Gangubai Bablya Chaudhary and Others vs. Sitaram Bhalchandra Sukhtankar and others⁴ held at

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Paragraph No.6 as under:

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“6. When an interim injunction is sought, the court may have to examine whether the party seeking the assistance of the court was at any time in lawful possession of the property and if it is so established one would prima facie ask the other side contesting the suit to show how the plaintiffs were dispossessed? We pinpointed this question and heard the submission. We refrain from discussing the evidence and recording our conclusions because evidence is still to be led and the contentions and disputes have to be examined in depth and any expression of opinion by this court may prejudice one or the other party in having a fair trial and uninhibited decision. Having given the matter our anxious consideration, we are satisfied that this is not a

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4 (1983) 4 SCC

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case in which interim injunction could be refused. Similarly we are of the opinion that if respondents are allowed to put up construction by the use of the F.S.I. for the whole of the land including the land involved in dispute, the situation may become irreversible by the time the dispute is decided and would preclude fair and just decision of the matter. If on the contrary injunction is granted as prayed for the respondents are not likely to be inconvenienced because they are in possession of about 9000 sq. metres of land on which they can put up construction.”

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Further, the Hon’ble Supreme Court in the case

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of C.J. International Hotels Ltd. and Others vs.

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N.D.M.C. and others⁵ held at Paragraph No.11 as under:

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“ 11 . At the stage of deciding the application for temporary injunction, the Court is not required to go into the merits of the case in detail. What the Court has to examine is: (i) the plaintiff has a prima facie case to go for trial; (ii) protection is necessary from that species of injuries known as irreparable before his legal right can be established; and (iii) that the mischief of inconvenience likely to arise from withholding injunction will be greater than what it likely to arise from granting int. The principles governing the grant of injunction are well settled. The power is discretionary and is to be exercised on sound judicial principles. Where no violation of the rights of the plaintiffs was involved, the interim injunction should not be granted. It is on these principles that the Court has to examine the respective case of the parties.”

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Further, the Hon’ble Supreme Court in the case

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of Sourav Sarkar (Stated supra) held at Paragraph No.16

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as under:

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5 2001 (60) DRJ 562

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“ 16. The term ‘irreparable injury’ means substantial injury which cannot be adequately remedied or compensated by way of damages and the Court shall consider whether protection is necessary from the species of injuries known as ‘irreparable’ before his legal right can be established. Court shall consider whether the mischief or inconvenience likely to arise from withholding injunction will be greater than which is likely to arise if granted. At this stage of deciding the application for temporary injunction, the Court is not required to go into the merits of the case in detail.”

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Further, the Hon’ble Supreme Court in the case

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of Jharkand State Housing Board vs. Didar Singh and

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another⁶ held at Paragraph No.11 as under:

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“ 11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.”

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Upon considering the submissions of both the

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parties and perusal of the documentary materials, one thing that as admitted by both the plaintiffs and the defendants that there was decree of specific performance in O.S.No.227/1947-48 and the said decree in the suit for

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6 (2019) 17 SCC 692

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specific performance of contract was set-aside in the First Appeal. Subsequently, R.S.A.No.5/1953 was filed by Patel Anjane Gowda was allowed decreeing the suit for specific performance directing Sanjeevachar to execute a sale deed. In execution case No.335/1956, the Executing Court has executed the decree through the Court Commissioner and sale deed was executed in favour of Patel Anjane Gowda. These facts are not in dispute by either side.

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But the plaintiffs have disputed that the possession has been handed over to Patel Anjane Gowda by asserting that the plaintiffs are still in possession over the suit schedule property. In this background, the submissions made by the parties and the documents produced are considered.

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It is the principal contention of the learned counsel for the appellants/plaintiffs that the plaintiffs are in settled possession and possession was not delivered to Patel Anjane Gowda, copy of decree in Execution Case

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No.335/1956 is produced by the counsel for the

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respondents that the decree in O.S.227/1947-48 is executed and the said decree is executed through the Court Commissioner appointed by the Court and it is specifically stated that the possession of the suit schedule property is delivered on the very date of agreement of sale dated 28.06.1947 and has been in the possession as the purchaser continuously in possession since then. Further, it is observed in the said order of execution No.335/1956 that vendor (Sanjeevachar) agrees that the possession so delivered on the date of agreement and enjoyed without any interference or disturbance by anybody. Further, it is observed that the purchaser has just become the absolute owner of the property as shown in the sale deed. Therefore, the Court Sale Deed was executed on 23.02.1957. Accordingly, the Executing Court has executed the sale deed in favour of Patel Anjane Gowda by appointing Court Commissioner and possession was delivered to Patel Anjane Gowda.

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Thus, the Court Sale Deed executed in Execution Case No.335/1956 in favour of Patel Anjane Gowda pursuant to the judgment and decree passed in R.S.A. No.5/1953 by this Court.

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After execution of the Court Sale Deed, Patel Anjane Gowda and Sanjeevachar have filed application for grant of occupancy rights under the provisions of Section 9 of the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954. It is observed by the Special Deputy Commissioner for Inams Abolition, Bangalore that the lands in Sy. Nos.52, 53, 56, 57, 58 and 59 are registered in the name of Patel Anjane Gowda S/o. Thimmegowda under Section 9 of the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954 as he becomes the transferee and successor-in-interest of inamdar as these transactions are from the Inamdar B. Lakshmipathi and rejected the claim of Sajeevachar.

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The original inamdar is one B. Lakshmipathy.

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The grand father of the plaintiffs namely Archak Sanjeevchar had purchased property in the year 1945. Subsequently, on 28.06.1947 Patel Anjane Gowda had entered into agreement of sale with Sanjeevachar, who is grand father of the plaintiffs. As above discussed that sale execution was led in decree in favour of Patel Anjane Gowda and decree was executed through Court Commissioner in favour of Patel Anjane Gowda and also it was observed in the said order of Execution Case No.335/1956 that possession was delivered in favour of Patel Anjane Gowda. Therefore, prima facie it is proved that the plaintiffs are not in possession over the property.

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It is the case of the defendants that son of Patel Anjane Gowda, who has inherited the suit schedule land from Patel Anjane Gowda has sold the schedule land in favour of the father of defendant Nos.2 to 6-Shanthilal Mutha and in favour of one Jayanthilal Mutha. These two have made layout and formed 508 sites and sold to

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various purchasers. This fact is pleaded by the plaintiffs in the plaint. Therefore, prima facie it is shown that the plaintiffs are not in possession over the suit schedule land. Though the plaintiffs might have contended that the defendants have not obtained approval from the Competent Authorities for formation of layout as it come under Green Zone Area as indicated in the Master Plan, whatever may be the infraction committed by the defendants while getting approval for formation of layout and formation of sites, upon very pleading from the plaint that layout was formed and sites were sold, prima facie is showing that the defendants are in possession. Whether layout is approved or not for formation of layout is different aspect. If for any infraction in this regard, the law will take its own recourse. Here at this stage the thing is to be considered is who is in possession over the suit schedule land.

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Further, this Court in W.P. No.7284/2016 dated 20.07.2022 filed by Shanthilal Mutha and others against

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the Government and others, it was observed at paragraph Nos.7, 8, 9, 14, 15 to 17 and the gist of the observation is that the decree in O.S.No.227/1947 was ultimately culminated into the execution of sale deed in favour Patel Anjane Gowda by the Civil Court and it was also registered. Therefore, it was observed whatever title Sanjeevchar possessed over the lands in question stood extinguished by the decree passed in O.S. No.227/1947. Therefore, question of respondent Nos.4 to 7 (plaintiffs in the present appeal) who claim title under Sanjeevachar, opposing the entering the names of Shanthilal Mutha and Jayanthilal Mutha cannot arise at all. It is observed that since respondent Nos.4 to 7 (plaintiffs in the present suit) are claiming title only through Sanjeevachar, by virtue of their admitted possession that they are successors-ininterest of Sanjeevchar, they would necessarily be bound by the decree that had been passed against Sanjeevachar, which was also confirmed by this Court in R.S.A. No.5/1953.

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Further, the said Sanjeevachar had executed

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the sale deed on 27.05.1974 in favour of K.C. Suresh by

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claiming that Sanjeevachar is the owner of the suit schedule land, but by that time, Sanjeevachar had already suffered a decree in the suit filed for specific performance as above observed. Upon perusal of the plaint, this fact is suppressed by the plaintiffs. Though, Sanjeevachar had executed the registered sale deed in favour of K.C. Suresh, the validity of the sale deed is a matter to be considered that Sanjeevachar had admitted that he had parted with the possession over the suit schedule land. Hence, whatever the order of Land Tribunal in favour of K.C. Suresh, subsequent to legal proceedings is to be considered in the trial how far these proceedings stand in the trial is matter for trial and to determine in the background of the legal proceedings between the parties.

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Upon the principle of law laid down by the Hon'ble Supreme Court as above stated and upon

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considering the facts and circumstances stated in the pleadings and considering the materials at this stage, which are filed in voluminous quantity of documents, now at this stage, the question to be considered is who is in possession over the suit schedule land, but prima facie it is found that the defendants are in possession. Furthermore, the defendants have produced materials regarding records of rights of the year 2024-25; it is found that the defendants are in possession. Therefore, the Trial Court has not committed error in observing that the plaintiffs have not made out prima facie case, therefore, justified the rejection of applications filed for seeking to grant an order of temporary injunction. As above discussed, the plaintiffs have failed to make out prima facie case and balance of convenience. Accordingly, I answer point Nos.(i) and (ii) in the Negative . Furthermore, as observed above, the defendants are in possession and if at this stage, an order of temporary injunction is granted, then the defendants would be put into more irreparable loss

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and injury than the plaintiffs. Hence, it is not a fit case to grant an order of temporary injunction; accordingly, I answer point No.(iii) in the Negative . Consequently, the order passed by the Trial Court in rejecting the application filed for temporary injunction is justified. Hence, there is no need to make interference in the order passed by the Trial Court in rejecting the applications filed for temporary injunction. Accordingly, I answer point No.(iv) in the Negative . Thus, resultantly, the appeal is liable to be dismissed.

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30. Accordingly, the appeal is dismissed .

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Whatever observations made above are only for

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the purpose of considering the applications filed for temporary injunctions based on the materials produced and shall not be construed as discussions on the merits involved in the case; hence, the Trial Court is directed to consider the suit in accordance with law after receiving the evidence from both the sides and dispose of

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