Sri H B Santosh Kumar Jain Vs Smt K Nirmala

SMT. CHAYA SANTOSH KUMAR .H W/O H.B. SANTOSH KUMAR JAIN, AGED ABOUT 58 YEARS, R/AT NO.72/15, 4^TH CROSS ROAD, AZADNAGAR, CHAMARAJPETE, BENGALURU-560018.

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SRI SASHWATH JAIN H.S. S/O H.B. SANTOSH KUMAR JAIN AGED ABOUT 36 YEARS, R/AT NO.660, SMV LAYOUT, 3^RD BLOCK, ULLAL, BENGALURU-560 056.

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SRI SURAKSHITH S. JAIN S/O H.B. SANTOSH KUMAR JAIN AGED ABOUT 33 YEARS, R/AT NO.660, SMV LAYOUT, 3^RD BLOCK, ULLAL, BENGALURU-560 056. ...APPELLANTS

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(BY SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR SRI MARUTHI G.B., ADVOCATE)

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AND:

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SMT. K. NIRMALA W/O K. RAGHAVA RAO AGED ABOUT 56 YEARS, R/AT NO.4321, VBHBCS LAYOUT, 4^TH PHASE, GIRINAGAR, BANASHANKARI 3^RD STAGE, BENGALURU-560 085.

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SRI ASHOK KUMAR S/O K. RAGHAVA RAO, AGED ABOUT 30 YEARS, R/AT NO.4321, VBHBCS LAYOUT, 4^TH PHASE, GIRINAGAR, BANASHANKARI 3^RD STAGE, BENGALURU-560 085. ...RESPONDENTS

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(BY SRI ASHOK HARANAHALLI, SENIOR COUNSEL FOR SRI R. HEMANTH RAJ, ADVOCATE FOR C/R-1)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC AGAINST THE ORDER DATED 08.04.2026 PASSED ON I.A.NO.I IN O.S.NO.1598/2026 ON THE FILE OF THE XV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH NO.3), ALLOWING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF CPC.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 30/04/2026, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA

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CAV JUDGMENT

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This Miscellaneous First Appeal is directed against the

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order dated 08.04.2026 passed on I.A No. I in OS No. 1598/2026 on the file of XV Additional City Civil and Sessions Judge, Bengaluru (CCH.3) (‘the Trial Court’ for short), whereby the application filed by the plaintiffs under Order XXXIX, Rule 1 and 2 read with Section 151 CPC has been allowed and the defendants have been restrained by way of temporary injunction from interfering with the peaceful possession and enjoyment of the plaintiffs over the suit Schedule ‘A’ and ‘B’ properties pending disposal of the suit.

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BRIEF FACTS

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The respondents herein, who are the plaintiffs before the Trial Court, instituted a suit for bare injunction contending that they are the absolute owners in lawful possession and enjoyment of the suit schedule ‘A’ and ‘B’ properties by virtue of registered sale deed executed in the year 2016, derived through Vishwabharathi House Building Cooperative Society (‘the Society’ for short). It is the case of

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the plaintiffs that ever since from the date of purchase they have been in peaceful possession of the properties. It is further stated that on 16.11.2022, defendant No. 1 along with others interfered with their possession, obstructed construction activities and threatened them. According to the plaintiffs, though a complaint was lodged, the police treated the matter as civil in nature. It is stated that the defendants had earlier instituted suit in OS No. 7417/2022 seeking injunction against the plaintiffs which came to be rejected and attained finality. It is further stated that subsequent to the failure in earlier proceedings, defendant Nos. 1 and 2 attempted to create third party rights by executing gift deeds in favour of defendant Nos. 3 and 4, during the pendency of the litigation and once again attempted to interfere with their possession and the plaintiffs filed an application for temporary injunction along with the suit.

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Sri Jayakumar S Patil, learned Senior Counsel

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appearing for the appellants, submits that the Trial Court has failed to appreciate the foundational defect in the plaintiffs

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claim of title and possession. It is contended that the entire claim of the plaintiffs is traced through the Society, whose alleged acquisition itself has failed in law. It is submitted though a preliminary notification under Section 4 (1) was issued, no final notification was ever issued and the acquisition proceedings did not culminate in vesting of land. In this regard, it is pointed out that in W.P.No. 18584/1989 filed by the Society seeking completion of acquisition, the relief sought was rejected. Further, W.A.No. 8766/1996 was also dismissed, and ultimately, the Society itself sought refund of the amount deposited which came to be ordered. Thus, the Society has no vested right to form layouts or convey sites. It is further contended that the Society itself

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had instituted OS No. 777/2007 against the vendor of the defendants seeking injunction, and the said suit was dismissed, thereby negating the claim of the Society over the very property. It is therefore submitted that once the Society's claim has been rejected in earlier proceedings, the

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plaintiffs, claiming through such Society, cannot assert any better title.

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3.1. Learned Senior Counsel further submits that the appellants derived title through H Lankappa, who had valid title, and who executed registered sale deed dated 02.06.2022 in favour of appellant Nos. 1 and 2, followed by subsequent transactions. It is therefore contended that the appellants are in lawful possession. It is also submitted that the earlier proceedings initiated by the appellants in OS No. 7417/2022 for injunction came to be rejected and confirmed in appeal, however such rejection does not confer any right on the plaintiffs’ nor does it establish their possession. It is submitted that the Trial Court has erroneously relied upon the earlier proceedings as a ground to grant injunction. It is submitted that an order of status quo be directed to be maintained in light of the disputed and rival claims and further with a direction for expeditious disposal.

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Per contra, Sri Ashok Haranahalli, the learned

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Senior Counsel appearing for the respondent No.1, would submit that the appellants have consistently failed in the earlier round of litigation in securing any order of injunction in respect of the very property. It is submitted that in OS No. 7417/2022, appellants herein had sought for temporary injunction against the present plaintiffs and the said application came to be rejected. The matter was remanded for reconsideration and even upon reconsideration, the application for injunction again came to be rejected. Thereafter, the appeal preferred in MFA No. 2855/2023 also came to be dismissed. It is further submitted that the records disclose that the plaintiffs claim the title not merely through acquisition proceedings initiated for benefit of the Society, but also through a GPA executed by Sri H. Lankappa

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in favour of the Society on 25.08.1988, pursuant to which layouts were formed and sites were sold. Reliance is also placed on the sale deed dated 05.02.1992 executed by the Society in favour of Sri Lankapa in respect of site No. 109

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and layout approval plan dated 30.08.1993 relating to the fifth phase of Vishwabharathi Society. The learned Senior Counsel would further contend that in the connected proceedings including the order passed in MFA No. 8388/2023 arising out of the order passed on I.A in OS No. 7897/2022, this Court had an occasion to notice the rival claims. It is submitted that in the meanwhile, the siblings of Hanumanthappa had also instituted a suit for partition, wherein it was held that out of larger extent, an extent of 1 acre 15 guntas had fallen to the share of the sister of Hanumanthappa. It is further submitted that in the connected MFA No. 2997/2024 this Court has observed that Lankappa had no subsisting right over the property, having already executed GPA in favour of the Society and that the Society had become ostensible owner and has formed layouts and sold sites. It is therefore contended that Lankappa has lost his right over the land in Sy.No.238/1 long back and consequently the appellants who claim through H Lankappa, cannot now assert title adverse to the plaintiffs. It

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is submitted that the findings recorded in the earlier proceedings disclose the issue relating to identity of the property has substantially been answered against the appellants. Reliance is also placed on the building plan, approvals and neighbouring site transactions to contend that the layout in question is identifiable and existing. On the strength of the aforesaid materials, learned Senior Counsel for the respondent No.1 submits that the order of injunction

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granted by the Trial Court deserves to be confirmed. However, it is fairly submitted that the plaintiffs would not put up any construction pending disposal of the suit. But the appellants/defendants are required to be restrained from interfering with the plaintiffs possession, particularly in view of the fact that the appellants have failed in all the earlier litigations and issues relating to the right of H. Lankappa has been considered in the connected proceedings.

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This Court has carefully considered the

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contentions urged and perused the material on record. The point that arises for consideration is,

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“Whether the impugned order passed by the Trial Court warrants interference?”

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At the outset, it is to be stated that it is well settled that an Appellate Court would not ordinarily interfere with the discretion exercised by the Trial Court while considering an application for temporary injunction unless such discretion is shown to be arbitrary, capricious or perverse as held by the Apex Court in the case of Wander Ltd. and Another Vs. Antox India P. Ltd.¹ (Wander Ltd.),

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wherein it has been held at para 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 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

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1 1990 (Supp) SCC 727

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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 that the appellate court would have taken a different view may not justify 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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In the present case, though the appellants have contended that the acquisition proceedings initiated for benefit of the Society had not culminated in issuance of final notification and that the Society had failed in earlier writ proceedings, the material on record would disclose that the claim of the plaintiffs is not only based upon such acquisition proceedings. The plaintiffs have also relied upon GPAs stated to have been executed by Sri H. Lankappa in favour of the Society on 25.08.1988, the subsequent layout formation,

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the sale deed dated 05.02.1992 executed in respect of site No. 109, the layout approval plan dated 30.08.1993 relating

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to the fifth Phase of the Society, the neighbouring site transaction and the orders passed in connected proceedings, to contend that the layout in question is existing and is identifiable. At this stage, it is relevant to mention the findings recorded in MFA No. 8388/2023 which is filed by one B. S. Manjunath against an order passed on I.As in OS No. 7897/2022, who claims to have purchased the suit property

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directly from Lankappa, and at paragraph Nos. 11, 12 and

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13, it is stated as under :

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“11. On careful perusal of the records reveals that the land in Sy.No.238 was belonging to one Lankappa. The vendor of the plaintiff who purchased the property under the sale deed dated 21.07.1988 from the children of one Hanumanthappa measuring 2 acres 30 guntas. Subsequently, Lankappa vendor of the plaintiff executed a GPA and agreement of sale in favour of the Vishwabharhi Housing Co-operative Society Limited. Meanwhile other siblings i.e., sister of Hanumanthappa filed a suit against the vendor of the plaintiff in O.S.No.7961/2022 for partition. The said suit was decreed, the half of the land i.e., 1 acre 15 guntas fallen to the share of the sister of Hanumanthappa’s and by way of purchase the vendor of the plaintiff got only 1 acre 15 guntas. The said land already handed over to the Vishwabharthi Housing Co-operative Society Limited, they formed the layout with other lands and formed the sites, one of the site purchased by the respondent / defendant herein. Whereas the vendor of the defendant put up the compound wall in 2010 itself and katha also changed in his name, but the plaintiff said to be purchased the property from Lankappa in the year 2022 by mentioning some site number with lesser measurement. Therefore, the vendor of the plaintiff

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Lankappa had already lost the right title over the property and in view of the execution of the agreement of sale and GPA the Vishwabharthi Housing Co-operative Society Limited has become ostensible owner under Section 41 of the Transfer of Property Act, 1882 and they already sold the property to the defendant's vendor. It has been the case, the plaintiff do not have any prima facie case in his favour to show that he has derived any right title from his vendor Lankappa.

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12. The Trial Court had not properly appreciated the documents on record whereas the defendant claims the property under the allotee of the Vishwabharhi Housing Co-operative Society Limited and purchased the site, where they put up the compound wall. Now under the guise of creating a sale deed the plaintiff trying to interfere with the property of the defendant which cannot be allowed.

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13. This Court also held in a connected MFA.No.2997/2024 that Lankappa has no right title over the property as he had already executed GPA in favour of the society and society has become ostensible owner, they formed the layout and sold the site. It has been a case until cancelling the agreement of sale, the GPA in favour of the society and sale deed of the defendant, the plaintiff cannot seek any relief

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for injunction. When there is a cloud over the title of the plaintiff bare injunction suit is maintainable. The plaintiff is required to convert the suit into declaration sult. On the other hand the defendant claims counter claim in written statement that the property which was purchased through the society has became the case, the balance of conveyance in favour of the defendant but not in favour of the plaintiff. It is also brought by the notice to the counsel for appellant that the plaintiff's vendor Lankappa purchased the site from the same society which was formed in Sy.No.238, if the said document is considered then the vendor of the plaintiff Lankappa had lost the land in Sy.No.238 long back and he himself purchased a site from the society. Such being the case, the plaintiff cannot claim any right, title, interest over the Sy.No.238. Therefore, the plaintiff will not get any right over the suit schedule property. Therefore, the plaintiff required to convert the suit into declaration suit and ascertain the title till then the question of granting injunction in favour plaintiff does not arises. On the other hand if the defendant is not able to show if the injunction is not granted, the defendant will be put to hardship and loss. Therefore, the suit schedule property is required to be protected until disposal of the suit. Thereby, the order of the Trial Court is require interference and modified by this Court.”

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It is also relevant to notice that defendants 1 and 2

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herein had earlier instituted OS No. 7417/2022 against the present plaintiffs seeking temporary injunction in respect of the very property. The application for injunction filed therein came to be rejected. Though the matter was remanded in MFA proceedings for reconsideration, upon reconsideration, the application came to be rejected and subsequent appeal in MFA No. 2855/2023 came to be dismissed and held at paragraph No. 24 as under :

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“24. Having perused the description of the schedule in the sale deed dated 02.06.2022, it is mentioned as site Nos.2 and 3. But, property comes within the purview of present BBMP and the photographs also clearly disclose that a layout is formed and in the surrounding areas, the buildings have come up and though it is contended that sites are formed in Sy.No.238/1 in 2 acres, 13 guntas and property came to the vendors, they formed sites in Sy.No.238/1 in 1 acre, 15 guntas, including 2 guntas of karab. But, at the time of formation of sites also, there was no any approved plan by the competent authority and pleaded that the vendor had formed the sites after conversion. However, now the plaintiffs

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claim that the property is converted after purchase. When such being the case, the very identification of the property as contended by the learned counsel for the respondents is disputed and the same is also observed by the Trial Court, while passing an order that there are rival claims in respect of the very same property and the respondents claim site Nos.384 and 385 and the plaintiffs claim site Nos.2 and 3 in Sy.No.238/1.”

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Thereafter, OS No. 7417/2022 itself came to be

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withdrawn on 28.02.2026. The records further would indicate

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that in the earlier proceedings, the issue relating to identity and existence of the layout and neighbouring sites have also been considered. The respondents have also relied upon the observations made in connected proceedings including MFA No. 2997/2024, wherein, this Court had prima facie observed that H. Lankappa had already executed GPA in favour of the Society and that the Society had thereafter formed layouts

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and sold sites to various purchasers. Therefore, at this interlocutory stage, it cannot be said or held that the plaintiffs have failed to establish a prima facie case. whatsoever.

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The triable claims relating to title, possession and

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identity of the property involve serious disputed questions of

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fact, which necessarily require adjudication of trial. At this stage of considering the application for temporary injunction, the Court is only required to examine whether a prima facie case is made out and whether the balance of convenience and irreparable injury justify preservation of the property, pending adjudication. The Trial Court, upon appreciation of the material on record, has exercised its discretion in favour

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of the plaintiffs. This Court does not find that such exercise

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of discretion, suffers from any perversity or arbitrariness, warranting interference in appeal, and accordingly, point framed for consideration is answered and this Court pass the following :

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ORDER

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