Karnataka High Court
Sri K Dharmendra vs Sri Gopinath Muppiri on 7 January, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
MISCELLANEOUS FIRST APPEAL NO.8225/2024 (CPC)
BETWEEN:
SRI K. DHARMENDRA
S/O M. KRISHNASWAMY
AGED ABOUT 50 YEARS
RESIDING AT NO.81
GPR GRAND LAYOUT
HOSUR MAIN ROAD
OLD CHANDAPURA
ANEKAL TALUK
BANGALORE-560099. ... APPELLANT
(BY SRI C.S.PRASANNA KUMAR, ADVOCATE FOR
SRI K P BHUVAN, ADVOCATE)
AND:
SRI GOPINATH MUPPIRI
S/O LATE M. KRISHNAMMA NAIDU
AGED ABOUT 55 YEARS
R/O NO.46, DESAI GRADEN
VASANTHPURA MAIN ROAD
KONANKUNTE CROSS
KANAKAPURA ROAD
BANGALORE-560062
... RESPONDENT
(BY SRI AJITH A. SHETTY, ADVOCATE FOR C/R)
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THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 30.11.2024 PASSED ON I.A.
NOS.1/2024 AND 2/2024 IN O.S.NO.25367/2024 ON THE FILE
OF THE LVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
MAYO HALL UNIT, BENGALURU (CCH-58), REJECTING I.A.
NO.1/2024 FILED UNDER ORDER XXXIX RULE 1 AND 2 READ
WITH SECTION 151 OF CPC AND ALLOWING THE I.A.2/2024
FILED UNDER ORDER 39 RULE 4 OF CPC FOR VACATING
TEMPORARY INJUNCTION GRANTED ON 23.04.2024.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 17.12.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
This miscellaneous first appeal is filed challenging the order dated 30.11.2024 passed on I.A.Nos.1/2024 and 2/2024 in O.S.No.2536/2024 by the LVII Additional City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru wherein the Trial Court rejected I.A.No.1/2024 filed under Order 39 Rules 1 and 2 of CPC and allowed I.A.No.2/2024 filed under Order 39 Rule 4 of CPC.
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2. Heard the learned counsel appearing for the respective parties.
3. The factual matrix of the case of the plaintiff before the Trial Court is that the plaintiff is the absolute owner in peaceful possession and enjoyment of the suit schedule property having acquired the same under the Gift Deed dated 07.12.2023 and pursuant to the Gift Deed, katha was transferred in his name and gift deed was acted upon and all relevant documents are standing in the name of the plaintiff as on the date of filing of the suit. It is contended that defendant being the greedy person, for a wrongful gain, has started to interfere with his peaceful possession and enjoyment and along with his henchmen, came near the suit schedule property and attempted to dispossess the plaintiff, for which, the plaintiff has filed the suit for the relief of permanent injunction and also filed an application for temporary injunction as sought in I.A.No.1/2024.
4. Per contra, the learned counsel appearing for the defendant filed a memo praying to adopted the written 4 statement as objection to I.A.No.1/2024 wherein he has seriously disputed the execution of the Gift Deed in favour of the plaintiff and also contended that the donor has already filed a suit in O.S.No.2043/2002 and O.S.No.25367/2024 is pending before the Court, in which, the very donor has filed the suit against the original vendor for possession and hence, the same shows that the plaintiff is not in possession of the suit schedule property since the very donor was not in possession. It is contended by the defendant that hy became the owner of he said property bearing No.532/4 and 532/5 through registered sale deed. It is also contended that even though the plaintiff is not in possession of the property, created the gift deed and filed a false suit and even title is also not perfected and approached the Court to dismiss the application and also filed I.A.No.2/2024 under Order 39 Rule 4 of CPC praying to vacate the interim order granted on 23.04.2024 and the said application is also objected by the plaintiff by filing the objections.
5. The Trial Court having considered the documents which have been placed by the respective parties, formulated 5 the points for consideration regarding cardinal principles of granting temporary injunction. The Trial Court having considered the material available on record answered point Nos.1 to 3 as negative in respect of I.A.No.1/2024 is concerned and answered point No.4 as affirmative in respect of I.A.No.2/2024 is concerned. Being aggrieved by the said order, the present appeal is filed before this Court by the plaintiff/appellant.
6. The learned counsel for the appellant would vehemently contend that the suit schedule property is gifted by the father and the Trial Court also granted an exparte injunction earlier and the same has been vacated. The counsel also would vehemently contend that the very approach of the Trial Court is erroneous. The Trial Court has come to the wrong conclusion that the suit schedule property in the present suit is in question in another O.S.No.2045/2005 which can be proved only by way of evidence and also the Trial Court failed to consider the fact that the defendant is claiming right over the property in site No.532/4 and 532/5 and alleged sites are in existence and respondent has not produced the parent deed in support of his 6 claim. Without considering this aspect of the matter, the Trial Court committed an error. The Trial Court committed an error in coming to the conclusion that matter requires full fledged trial regarding possession is concerned and the very approach of the Trial Court that the plaintiff has not made out prima facie case, balance of convenience and irreparable hardship and the said conclusion is erroneous when the Gift Deed clearly discloses that the appellant is in peaceful possession and enjoyment of the suit schedule property. The Trial Court also failed to take note of the fact that the appellant is claiming right, title and interest by seeking permanent injunction in respect of site Nos.15 and 16 formed in Sy.No.139/4 and 139/5 and the respondent is claiming right in respect of site Nos.532/4 and 532/5 and hence, the site numbers are totally different and the boundaries are also totally different and there is existence of the property to the respondent. The counsel brought to notice of this Court the schedule of 'A' and 'B' schedule properties and contend that it requires interference of this Court.
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7. Per contra, the learned counsel appearing for the respondent would vehemently contend that when the very donor himself had filed the suit for the relief of possession and in support of his contention also produced the documents of plaint in O.S.No.2043/2002 to show that schedule is also one and the same in respect of the present suit and contend that the Trial Court rightly comes to the conclusion that when the suit is filed for the relief of possession, cannot seek for any relief and also produced the sale deed dated 04.04.2003 wherein also specifically mentioned the site number as 532/5 and in the very same Sy.No.139/4 and 139/5 sites are formed and also brought to notice of this Court another sale deed dated 04.04.2003 wherein also the very same description of the property is mentioned that site No.532/4 which is carved out of Sy.No.139/4-5 and also produced the katha certificate and assessment extract.
8. In reply to the arguments, the learned counsel appearing for the appellant also relied upon certain documents i.e., the document of Gift Deed dated 07.12.2023 and also the 8 other Gift Deed of the same date in respect of site measuring 2400 square feet and also relied upon tax paid receipt of 2024 for having paid the tax at a time and also produced the electricity bills and also the document of sale deed dated 25.02.1981 and also the sale deeds which have been produced by the respondent and also suit filed in O.S.No.1255/2018 filed by the vendor of the defendant for the relief of bare injunction and contend that the Trial Court fails to take note of the fact that both the properties are different properties.
9. Having heard the learned counsel appearing for the respective parties and also on perusal of the material available on record and also perused the grounds urged in the appeal memo, the points that would arise for consideration of this Court are:
1. Whether the Trial Court committed an error in rejecting the application filed under Order 39 Rules 1 and 2 of CPC by the plaintiff and committed an error in allowing application filed under Order 39 Rule 4 of CPC in vacating the interim order and whether it requires interference of this Court?
2. What order?9
Point No.1:
10. Having heard the learned counsel appearing for the respective parties and also on perusal of the material available on record, it discloses that the very claim of the plaintiff before this Court that the property was gifted in his favour by his father on 07.12.2023 and katha was transferred and tax also paid and all revenue documents are in his name. On the other hand, the defendant in his written statement contend that the very donor has filed the suit for recovery of possession and when the donor was not in possession of the property, the question of granting any such relief does not arise and in support of his contention also produced the copy of the plaint in O.S.No.2043/2002 which has been filed by the donor and also another suit in O.S.No.25367/2024 is pending. Having perused the reasoning given by the Trial Court, it discloses that the Trial Court comes to the conclusion that when the donor himself had filed the suit for recovery of possession, the question of granting temporary injunction as contended by the plaintiff cannot be granted. It is also important to note that the suit schedule property is in respect of sites carved out of Sy.No.139/4 and 139/5 and the 10 defendant also claims that site No.532/4 and 532/5 which also carved out of very same survey number i.e., Sy.No.139/4 and 139/5 and hence, both are claiming title based on the sale deed and gift deed respectively executed in their favour and the very contention of the appellant that both the properties are different cannot be accepted.
11. Having perused the suit schedule in O.S.No.2043/2002, it is very clear that in respect of very present suit schedule property, already donor has filed the suit against the vendors for recovery of possession in O.S.No.2043/2002. When such suit is filed for recovery of possession, the question of delivering the possession of the property under the Gift Deed in favour of the plaintiff does not arise since the very donor has not having possession. Unless prima facie is made out for having possession of the suit schedule property as on the date of filing of the present suit by the plaintiff, the question of granting the relief as prayed for in I.A.No.1/2024 does not arise. The learned counsel for the respondent also brought to notice of this Court payment of tax at a time. When the very donor was not in 11 possession of the property, the plaintiff cannot contend that the plaintiff is in possession of the property. Hence, I do not find any error committed by the Trial Court in rejecting I.A.No.1/2024.
12. The learned counsel for the respondent brought to notice of this Court the very photographs produced by the appellant which clearly disclose that there is a board in respect of forming of sites in Sarvabhauma Nagara and the said photo is available in page No.68 of the appeal memo and also contend that the photographs which have been produced are created for the purpose of this case to show that the plaintiff is in possession of the property and the same cannot be relied upon to prove the possession is concerned. Having perused the material available on record and also the grounds urged before this Court, I do not find any prima facie case made out by the plaintiff to allow this appeal and hence, this Court is of the opinion that the Trial Court has not committed any error in appreciating the material available on record in coming to such a conclusion that no prima facie case is made out and rightly 12 rejected I.A.No.1/2024 and allowed I.A.No.2/2024. Hence, I answer the above point as negative.
13. In view of the discussions made above, I pass the following:
ORDER The miscellaneous first appeal is dismissed.
Sd/-
(H.P. SANDESH) JUDGE SN