Smt Kondamma vs Sri Venkateshwarulu M
2022 Latest Caselaw 4696 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 14 T H DAY OF MARCH, 2022

                        BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

            MFA NO.3616 OF 2021 (CPC)

BETWEEN:
1.  Smt. Kond amma
    W/o Late Balavenkataiah
    Aged about 70 years

2.   Smt. M. Ravanamma
     D/o Late Balavenkataiah
     Aged about 54 years

3.   Sri. Srinivas M
     S/o. Late Balavenkataiah
     Aged about 47 years

4.   Smt. Rathnamma
     D/o Late Balavenkataiah
     Aged about 43 years

5.   Smt. Sai Lakshmi M
     D/o Late Balavenkataiah
     Aged about 44 years

     All are r/at:
     No.352, 9 t h Cross
     M.V. Garden, Halasuru
     Bang alore - 560 008.
                                        ...Appellants

(By Sri. H.P. Leelad har, Advocate)

AND:
1.  Sri. Venkateshwarulu M
    S/o Late Venkataiah
    Aged about 75 years
                          :: 2 ::


2.    Sri. Srinivasalu M.V.M
      S/o Venkateshwarulu
      Aged about 49 years

3.    Sri. Venkata Suresh V
      S/o Venkateshwarulu
      Aged about 35 years

      All are r/at:
      No.353, 9 t h Cross
      M.V. Garden, Halasuru
      Bang alore - 560 008.
                                              ...Respondents

(By Sri N. Gop al, Advocate for C/R-1 to R-3)

      This MFA is filed under Order 43 Rule 1(r) of
CPC, praying to set asid e the ord er dated 22.07.2021
passed by the VIII-Additional City Civil and Sessions
Judge at Bang alore in O.S.No.3329/2021 rejecting the
interim application IA-I filed by the plaintiff/appellant
und er Ord er 39 Rule 1 and 2 r/w Section 151 of CPC
and allow this appeal.

      This MFA coming on for Admission this d ay, the
Court delivered the following:

                      JUDGMENT

Heard Sri. H.P.Leeladhar, learned counsel for

the appellants and Sri. N.Gopal, counsel for

respondents 1 to 3, who have entered caveat.

:: 3 ::

2. The appellants are the plaintiffs in

O.S.No.3329/2021 on the file of VIII Addl. City

Civil and Sessions Judge, CCH.15, Bengaluru.

Their suit is for permanent injunction to restrain

the defendants from interfering with their peaceful

possession and enjoyment of the property bearing

No.352, measuring East to West 20 ft. and North

to South 25 ft, situated at 9 t h Cross, M.V. Garden,

Halasuru, Bengaluru-8, with boundaries as

mentioned in the schedule to the plaint. Along

with the plaint, the appellants filed an application

I.A.No.1 under Order XXXIX Rules 1 and 2 CPC for

temporary injunction against the defendants and

since the trial court dismissed the said application

on 22.7.2021, this appeal has been preferred.

3. The first plaintiff is the widow of

Balavenkataiah and plaintiffs 2 to 5 are the

children of Balavenkataiah. Defendant no.1 is the :: 4 ::

brother of Balavenkataiah and defendants 2 and 3

are the sons of defendant no.1

4. It is the case of the plaintiffs that

Balavenkataiah acquired title over the plaint

schedule property by virtue of a sale deed

executed by the Corporation on 10.6.1977 and

that he held its possession till he was alive.

Balavenkataiah died on 4.8.2007. The plaintiffs

have stated that on 12.4.1993, the defendant no.1

obtained a GPA from Balavenkataiah fraudulently

and after coming to know about that GPA,

Balavenkataiah executed a declaration deed on

13.5.1993 canceling the GPA. This being the

position, on 25.6.2021, the defendants tried to

interfere with the plaintiffs' possession over the

plaint schedule property. The plaintiffs had

demolished some portion of the old building that

existed in the plaint schedule property for putting

up a new construction and at that time the :: 5 ::

defendants interfered to stop the work. Therefore

they were constrained to file a suit and seek an

order of temporary injunction till disposal of the

suit.

5. If the impugned order is read, it has been

clearly observed by the trial court that actually the

defendants have not pleaded about their right or

title over the suit property, but the trial court has

taken into consideration the documents produced

by the defendants to come to conclusion that the

first defendant being the brother of

Balavenkataiah is also in possession of the plaint

schedule property and for this reason if temporary

injunction is granted, the interest of the

defendants would also be affected. Observing so,

the trial court dismissed the application.

6. In para 9 of the plaint, it is clearly stated

that the plaintiffs demolished some portion of the

old building on 26.6.2021 for constructing a new :: 6 ::

building and at that time, the defendants tried to

interfere with their possession in order to stop the

construction. If the written statement is

considered, what is found is that the defendants

have just denied the plaint averments and that

they have not specifically stated their right over

the plaint schedule property. Only during

arguments, it appears that the defendants

produced some documents to assert their right

over the property. Therefore it is to be stated

that when the defendants do not come out with a

specific plea, and when the trial court observed

very clearly about it, it was not proper for the trial

court to come to conclusion that defendants might

also be having interest in the plaint schedule

property based on the documents produced by

defendants. It appears that the defendants did

not produce the documents along with written

statement, and that they produced them during

arguments on application for temporary injunction.

:: 7 ::

Any amount of documentary evidence without

foundation to it in the pleadings cannot be

considered and this is a well settled principle.

This principle can be applied at the time of

deciding the application for temporary injunction

also. Therefore the trial court having come to

conclusion that the defendants have not pleaded

anything about their right, if it could still come to

conclusion that the defendants' interest would be

affected in case injunction is granted, such a

finding cannot be sustained. All the documents

that the plaintiffs have produced make out a prima

facie case in their favour. They also establish

balance of convenience being in favour of plaintiffs

and irreparable loss and injury that the plaintiffs

would suffer in case injunction is not granted. In

this view, the trial court has not properly

exercised its discretion and therefore the

appellants have made out a case for interference.

Hence the following:

:: 8 ::

                           ORDER


     i.    Appeal is allowed.

ii. The order dated 22.07.2021 is set aside.

I.A.1 filed by the plaintiffs under Order

XXXIX Rules 1 and 2 CPC is allowed. The

defendants are hereby restrained from

interfering with the plaintiffs' peaceful

possession and enjoyment of the plaint

schedule property.

Sd/-

JUDGE

sd